exv4w04







EXHIBIT 4.04




DISCOVERY MINING, INC.




2003 STOCK INCENTIVE PLAN




     1. Purposes of the Plan. The purposes of this Plan are to attract and retain the best
available personnel, to provide additional incentives to Employees, Directors and Consultants and
to promote the success of the Company’s business.



     2. Definitions. The following definitions shall apply as used herein and in the
individual Award Agreements except as defined otherwise in an individual Award Agreement. In the
event a term is separately defined in an individual Award Agreement, such definition shall
supercede the definition contained in this Section 2.



          (a) “Administrator” means the Board or any of the Committees appointed to administer
the Plan.




          (b) “Applicable Laws” means the legal requirements relating to the Plan and the Awards
under applicable provisions of federal securities laws, state corporate and securities laws, the
Code, the rules of any applicable stock exchange or national market system, and the rules of any
non-U.S. jurisdiction applicable to Awards granted to residents therein.




          (c) “Assumed” means that pursuant to a Corporate Transaction either (i) the Award is
expressly affirmed by the Company or (ii) the contractual obligations represented by the Award are
expressly assumed (and not simply by operation of law) by the successor entity or its Parent in
connection with the Corporate Transaction with appropriate adjustments to the number and type of
securities of the successor entity or its Parent subject to the Award and the exercise or purchase
price thereof which preserves the compensation element of the Award existing at the time of the
Corporate Transaction as determined in accordance with the instruments evidencing the agreement to
assume the Award.




          (d) “Award” means the grant of an Option, Restricted Stock, or other right or benefit
under the Plan.




          (e) “Award Agreement” means the written agreement evidencing the grant of an Award
executed by the Company and the Grantee, including any amendments thereto.




          (f) “Board” means the Board of Directors of the Company.




          (g) “Cause” means, with respect to the termination by the Company or a Related Entity
of the Grantee’s Continuous Service, that such termination is for “Cause” as such term is expressly
defined in a then-effective written agreement between the Grantee and the Company or such Related
Entity, or in the absence of such then-effective written agreement and definition, is based on, in
the determination of the Administrator, the Grantee’s: (i) performance of any act or failure to
perform any act in bad faith and to the detriment of the Company or a Related Entity;
(ii) dishonesty, intentional misconduct or material breach of any agreement with the Company or a
Related Entity; or (iii) commission of a crime involving dishonesty, breach of trust, or physical
or emotional harm to any person.




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          (h) “Code” means the Internal Revenue Code of 1986, as amended.




          (i) “Committee” means any committee composed of members of the Board appointed by the
Board to administer the Plan.




          (j) “Common Stock” means the common stock of the Company.




          (k) “Company” means Discovery Mining, Inc., a Delaware corporation.




          (l) “Consultant” means any person (other than an Employee or a Director, solely with
respect to rendering services in such person’s capacity as a Director) who is engaged by the
Company or any Related Entity to render consulting or advisory services to the Company or such
Related Entity.




          (m) “Continuous Service” means that the provision of services to the Company or a
Related Entity in any capacity of Employee, Director or Consultant is not interrupted or
terminated. In jurisdictions requiring notice in advance of an effective termination as an
Employee, Director or Consultant, Continuous Service shall be deemed terminated upon the actual
cessation of providing services to the Company or a Related Entity notwithstanding any required
notice period that must be fulfilled before a termination as an Employee, Director or Consultant
can be effective under Applicable Laws. Continuous Service shall not be considered interrupted in
the case of (i) any approved leave of absence, (ii) transfers among the Company, any Related
Entity, or any successor, in any capacity of Employee, Director or Consultant, or (iii) any change
in status as long as the individual remains in the service of the Company or a Related Entity in
any capacity of Employee, Director or Consultant (except as otherwise provided in the Award
Agreement). An approved leave of absence shall include sick leave, military leave, or any other
authorized personal leave. For purposes of each Incentive Stock Option granted under the Plan, if
such leave exceeds ninety (90) days, and reemployment upon expiration of such leave is not
guaranteed by statute or contract, then the Incentive Stock Option shall be treated as a
Non-Qualified Stock Option on the day three (3) months and one (1) day following the expiration of
such ninety (90) day period.




          (n) “Corporate Transaction” means any of the following transactions:




               (i) a merger or consolidation in which the Company is not the surviving entity, except for a
transaction the principal purpose of which is to change the state in which the Company is
incorporated;



               (ii) the sale, transfer or other disposition of all or substantially all of the assets of the
Company;



               (iii) the complete liquidation or dissolution of the Company;



               (iv) any reverse merger or series of related transactions culminating in a reverse merger
(including, but not limited to, a tender offer followed by a reverse merger) in which the Company
is the surviving entity but (A) the shares of Common Stock outstanding immediately prior to such
merger are converted or exchanged by virtue of the merger into other property, whether in the form
of securities, cash or otherwise, or (B) in which securities possessing more than fifty percent
(50%) of the total combined voting power of the Company’s outstanding securities are transferred to
a person or persons different from those who held such securities immediately prior to such merger
or



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the initial transaction culminating in such merger, but excluding any such transaction or
series of related transactions that the Administrator determines shall not be a Corporate
Transaction; or



               (v) acquisition in a single or series of related transactions by any person or related group
of persons (other than the Company or by a Company-sponsored employee benefit plan) of beneficial
ownership (within the meaning of Rule 13d-3 of the Exchange Act) of securities possessing more than
fifty percent (50%) of the total combined voting power of the Company’s outstanding securities but
excluding any such transaction or series of related transactions that the Administrator determines
shall not be a Corporate Transaction.



          (o) “Covered Employee” means an Employee who is a “covered employee” under
Section 162(m)(3) of the Code.




          (p) “Director” means a member of the Board or the board of directors of any Related
Entity.




          (q) “Disability” means as defined under the long-term disability policy of the Company
or the Related Entity to which the Grantee provides services regardless of whether the Grantee is
covered by such policy. If the Company or the Related Entity to which the Grantee provides service
does not have a long-term disability plan in place, “Disability” means that a Grantee is unable to
carry out the responsibilities and functions of the position held by the Grantee by reason of any
medically determinable physical or mental impairment for a period of not less than ninety (90)
consecutive days. A Grantee will not be considered to have incurred a Disability unless he or she
furnishes proof of such impairment sufficient to satisfy the Administrator in its discretion.




          (r) “Employee” means any person, including an Officer or Director, who is in the
employ of the Company or any Related Entity, subject to the control and direction of the Company or
any Related Entity as to both the work to be performed and the manner and method of performance.
The payment of a director’s fee by the Company or a Related Entity shall not be sufficient to
constitute “employment” by the Company.




          (s) “Exchange Act” means the Securities Exchange Act of 1934, as amended.




          (t) “Fair Market Value” means, as of any date, the value of Common Stock determined as
follows:




               (i) If the Common Stock is listed on one or more established stock exchanges or national
market systems, including without limitation The Nasdaq National Market or The Nasdaq SmallCap
Market of The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price for such
stock (or the closing bid, if no sales were reported) as quoted on the principal exchange or system
on which the Common Stock is listed (as determined by the Administrator) on the date of
determination (or, if no closing sales price or closing bid was reported on that date, as
applicable, on the last trading date such closing sales price or closing bid was reported), as
reported in The Wall Street Journal or such other source as the Administrator deems reliable;



               (ii) If the Common Stock is regularly quoted on an automated quotation system (including the
OTC Bulletin Board) or by a recognized securities dealer, its Fair Market Value shall be the
closing sales price for such stock as quoted on such system on the date of determination, but if
selling prices are not reported, the Fair Market Value of a share of Common Stock shall be the



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mean between the high bid and low asked prices for the Common Stock on the date of
determination (or, if no such prices were reported on that date, on the last date such prices were
reported), as reported in The Wall Street Journal or such other source as the Administrator deems
reliable; or



               (iii) In the absence of an established market for the Common Stock of the type described in
(i) and (ii), above, the Fair Market Value thereof shall be determined by the Administrator in good
faith.



          (u) “Grantee” means an Employee, Director or Consultant who receives an Award under
the Plan.




          (v) “Immediate Family” means any child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in
law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, any
person sharing the Grantee’s household (other than a tenant or employee), a trust in which these
persons (or the Grantee) have more than fifty percent (50%) of the beneficial interest, a
foundation in which these persons (or the Grantee) control the management of assets, and any other
entity in which these persons (or the Grantee) own more than fifty percent (50%) of the voting
interests.




          (w) “Incentive Stock Option” means an Option intended to qualify as an incentive stock
option within the meaning of Section 422 of the Code.




          (x) “Initial Exercisability Date” means the date which is the earlier of the
Registration Date and the seventh anniversary of the grant date of the Award.




          (y) “Non-Qualified Stock Option” means an Option not intended to qualify as an
Incentive Stock Option.




          (z) “Officer” means a person who is an officer of the Company or a Related Entity
within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated
thereunder.




          (aa) “Option” means an option to purchase Shares pursuant to an Award Agreement
granted under the Plan.




          (bb) “Parent” means a “parent corporation”, whether now or hereafter existing, as
defined in Section 424(e) of the Code.




          (cc) “Performance-Based Compensation” means compensation qualifying as
“performance-based compensation” under Section 162(m) of the Code.




          (dd) “Post-Termination Exercise Period” means a period of three (3) months commencing
on the date of termination (other than termination by the Company for Cause) of the Grantee’s
Continuous Service, or such longer period as may be applicable upon death or Disability or as
determined by the Administrator; provided, however, that if the termination of the Grantee’s
Continuous Service occurs during any applicable lock-up period agreed to by the Company and in
effect following the Registration Date and if the Grantee is subject to such lock-up agreement, the
date of termination of the Grantee’s Continuous Service for purposes of the Post-Termination
Exercise Period (and not for any other purpose such as vesting of the Award) shall be deemed to be
the




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termination of the applicable lock-up period; provided, further, that prior to the Initial
Exercisability Date, there shall be no Post-Termination Exercise Period and in the event of
termination of the Grantee’s Continuous Service prior to the Initial Exercisability Date for any
reason, including, but not limited to, voluntary resignation, termination without Cause, death or
Disability, each Award of such Grantee (including the vested portions of such Awards) shall
terminate concurrently with the termination of the Grantee’s Continuous Service.




          (ee) “Plan” means this 2003 Stock Incentive Plan.




          (ff) “Registration Date” means the first to occur of (i) the closing of the first sale
to the general public pursuant to a registration statement filed with and declared effective by the
Securities and Exchange Commission under the Securities Act of 1933, as amended, of (A) the Common
Stock or (B) the same class of securities of a successor corporation (or its Parent) issued
pursuant to a Corporate Transaction in exchange for or in substitution of the Common Stock; and
(ii) in the event of a Corporate Transaction, the date of the consummation of the Corporate
Transaction if the same class of securities of the successor corporation (or its Parent) issuable
in such Corporate Transaction shall have been sold to the general public pursuant to a registration
statement filed with and declared effective by the Securities and Exchange Commission under the
Securities Act of 1933, as amended, on or prior to the date of consummation of such Corporate
Transaction.




          (gg) “Related Entity” means any Parent or Subsidiary of the Company and any business,
corporation, partnership, limited liability company or other entity in which the Company or a
Parent or a Subsidiary of the Company holds a substantial ownership interest, directly or
indirectly.




          (hh) “Replaced” means that pursuant to a Corporate Transaction the Award is replaced
with a comparable stock award or a cash incentive program of the Company, the successor entity (if
applicable) or Parent of either of them which preserves the compensation element of such Award
existing at the time of the Corporate Transaction and provides for subsequent payout in accordance
with the same (or a more favorable) vesting schedule applicable to such Award. The determination
of Award comparability shall be made by the Administrator and its determination shall be final,
binding and conclusive.




          (ii) “Restricted Stock” means Shares issued under the Plan to the Grantee for such
consideration, if any, and subject to such restrictions on transfer, rights of first refusal,
repurchase provisions, forfeiture provisions, and other terms and conditions as established by the
Administrator.




          (jj) “Rule 16b-3” means Rule 16b-3 promulgated under the Exchange Act or any successor
thereto.




          (kk) “Share” means a share of the Common Stock.




          (ll) “Subsidiary” means a “subsidiary corporation”, whether now or hereafter existing,
as defined in Section 424(f) of the Code.




     3. Stock Subject to the Plan.



          (a) Subject to the provisions of Section 10 below, the maximum aggregate number of Shares
which may be issued pursuant to all Awards (including Incentive Stock Options) is 1,500,000 Shares.
The Shares may be authorized, but unissued, or reacquired Common Stock.




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          (b) Any Shares covered by an Award (or portion of an Award) which is forfeited, canceled or
expires (whether voluntarily or involuntarily) shall be deemed not to have been issued for purposes
of determining the maximum aggregate number of Shares which may be issued under the Plan. Shares
that actually have been issued under the Plan pursuant to an Award shall not be returned to the
Plan and shall not become available for future issuance under the Plan, except that if unvested
Shares are forfeited or repurchased by the Company, such Shares shall become available for future
grant under the Plan.




     4. Administration of the Plan.



          (a) Plan Administrator.




               (i) Administration with Respect to Directors and Officers. Prior to the Registration
Date, with respect to grants of Awards to Directors or Employees who are also Officers or Directors
of the Company, the Plan shall be administered by (A) the Board or (B) a Committee designated by
the Board, which Committee shall be constituted in such a manner as to satisfy the Applicable Laws.
On or after the Registration Date, with respect to grants of Awards to Directors or Employees who
are also Officers or Directors of the Company, the Plan shall be administered by (A) the Board or
(B) a Committee designated by the Board, which Committee shall be constituted in such a manner as
to satisfy the Applicable Laws and to permit such grants and related transactions under the Plan to
be exempt from Section 16(b) of the Exchange Act in accordance with Rule 16b-3. Once appointed,
such Committee shall continue to serve in its designated capacity until otherwise directed by the
Board.



               (ii) Administration With Respect to Consultants and Other Employees. With respect to
grants of Awards to Employees or Consultants who are neither Directors nor Officers of the Company,
the Plan shall be administered by (A) the Board or (B) a Committee designated by the Board, which
Committee shall be constituted in such a manner as to satisfy the Applicable Laws. Once appointed,
such Committee shall continue to serve in its designated capacity until otherwise directed by the
Board.



               (iii) Administration With Respect to Covered Employees. Notwithstanding the
foregoing, as of and after the date that the exemption for the Plan under Section 162(m) of the
Code expires, as set forth in Section 18 below, grants of Awards to any Covered Employee intended
to qualify as Performance-Based Compensation shall be made only by a Committee (or subcommittee of
a Committee) which is comprised solely of two or more Directors eligible to serve on a committee
making Awards qualifying as Performance-Based Compensation. In the case of such Awards granted to
Covered Employees, references to the “Administrator” or to a “Committee” shall be deemed to be
references to such Committee or subcommittee.



          (b) Multiple Administrative Bodies. The Plan may be administered by different bodies
with respect to Directors, Officers, Consultants, and Employees who are neither Directors nor
Officers.




          (c) Powers of the Administrator. Subject to Applicable Laws and the provisions of the
Plan (including any other powers given to the Administrator hereunder), and except as otherwise
provided by the Board, the Administrator shall have the authority, in its discretion:




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               (i) to select the Employees, Directors and Consultants to whom Awards may be granted from time
to time hereunder;



               (ii) to determine whether and to what extent Awards are granted hereunder;



               (iii) to determine the number of Shares or the amount of other consideration to be covered by
each Award granted hereunder;



               (iv) to approve forms of Award Agreements for use under the Plan;



               (v) to determine the terms and conditions of any Award granted hereunder;



               (vi) to establish additional terms, conditions, rules or procedures to accommodate the rules
or laws of applicable non-U.S. jurisdictions and to afford Grantees favorable treatment under such
rules or laws; provided, however, that no Award shall be granted under any such additional terms,
conditions, rules or procedures with terms or conditions which are inconsistent with the provisions
of the Plan;



               (vii) to amend the terms of any outstanding Award granted under the Plan, provided that any
amendment that would adversely affect the Grantee’s rights under an outstanding Award shall not be
made without the Grantee’s written consent;



               (viii) to construe and interpret the terms of the Plan and Awards, including without
limitation, any notice of award or Award Agreement, granted pursuant to the Plan; and



               (ix) to take such other action, not inconsistent with the terms of the Plan, as the
Administrator deems appropriate.



          (d) Indemnification. In addition to such other rights of indemnification as they may
have as members of the Board or as Officers or Employees of the Company or a Related Entity,
members of the Board and any Officers or Employees of the Company or a Related Entity to whom
authority to act for the Board, the Administrator or the Company is delegated shall be defended and
indemnified by the Company to the extent permitted by law on an after-tax basis against all
reasonable expenses, including attorneys’ fees, actually and necessarily incurred in connection
with the defense of any claim, investigation, action, suit or proceeding, or in connection with any
appeal therein, to which they or any of them may be a party by reason of any action taken or
failure to act under or in connection with the Plan, or any Award granted hereunder, and against
all amounts paid by them in settlement thereof (provided such settlement is approved by the
Company) or paid by them in satisfaction of a judgment in any such claim, investigation, action,
suit or proceeding, except in relation to matters as to which it shall be adjudged in such claim,
investigation, action, suit or proceeding that such person is liable for gross negligence, bad
faith or intentional misconduct; provided, however, that within thirty (30) days after the
institution of such claim, investigation, action, suit or proceeding, such person shall offer to
the Company, in writing, the opportunity at the Company’s expense to defend the same.




     5. Eligibility. Awards other than Incentive Stock Options may be granted to
Employees, Directors and Consultants. Incentive Stock Options may be granted only to Employees of
the Company or a Parent or a Subsidiary of the Company. An Employee, Director or Consultant who
has been granted an Award may, if otherwise eligible, be granted additional Awards. Awards may be



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granted to such Employees, Directors or Consultants who are residing in non-U.S. jurisdictions
as the Administrator may determine from time to time.



     6. Terms and Conditions of Awards.



          (a) Designation of Award. Each Award shall be designated in the Award Agreement. In
the case of an Option, the Option shall be designated as either an Incentive Stock Option or a
Non-Qualified Stock Option. However, notwithstanding such designation, to the extent that the
aggregate Fair Market Value of Shares subject to Options designated as Incentive Stock Options
which become exercisable for the first time by a Grantee during any calendar year (under all plans
of the Company or any Parent or Subsidiary of the Company) exceeds $100,000, such excess Options,
to the extent of the Shares covered thereby in excess of the foregoing limitation, shall be treated
as Non-Qualified Stock Options. For this purpose, Incentive Stock Options shall be taken into
account in the order in which they were granted, and the Fair Market Value of the Shares shall be
determined as of the grant date of the relevant Option.




          (b) Conditions of Award. Subject to the terms of the Plan, the Administrator shall
determine the provisions, terms, and conditions of each Award including, but not limited to, the
Award vesting schedule, repurchase provisions, rights of first refusal, forfeiture provisions, form
of payment (cash, Shares, or other consideration) upon settlement of the Award, payment
contingencies, and satisfaction of any performance criteria. The performance criteria established
by the Administrator may be based on any one of, or combination of, increase in share price,
earnings per share, total stockholder return, return on equity, return on assets, return on
investment, net operating income, cash flow, revenue, economic value added, personal management
objectives, or other measure of performance selected by the Administrator. Partial achievement of
the specified criteria may result in a payment or vesting corresponding to the degree of
achievement as specified in the Award Agreement.




          (c) Acquisitions and Other Transactions. The Administrator may issue Awards under the
Plan in settlement, assumption or substitution for, outstanding awards or obligations to grant
future awards in connection with the Company or a Related Entity acquiring another entity, an
interest in another entity or an additional interest in a Related Entity whether by merger, stock
purchase, asset purchase or other form of transaction.




          (d) Deferral of Award Payment. The Administrator may establish one or more programs
under the Plan to permit selected Grantees the opportunity to elect to defer receipt of
consideration upon exercise of an Award, satisfaction of performance criteria, or other event that
absent the election would entitle the Grantee to payment or receipt of Shares or other
consideration under an Award. The Administrator may establish the election procedures, the timing
of such elections, the mechanisms for payments of, and accrual of interest or other earnings, if
any, on amounts, Shares or other consideration so deferred, and such other terms, conditions, rules
and procedures that the Administrator deems advisable for the administration of any such deferral
program.




          (e) Separate Programs. The Administrator may establish one or more separate programs
under the Plan for the purpose of issuing particular forms of Awards to one or more classes of
Grantees on such terms and conditions as determined by the Administrator from time to time.




          (f) Individual Option Limit. Following the date that the exemption from application
of Section 162(m) of the Code described in Section 18 (or any exemption having similar




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effect) ceases to apply to Awards, the maximum number of Shares with respect to which Options
may be granted to any Grantee in any fiscal year of the Company shall be 750,000 Shares. In
connection with a Grantee’s commencement of Continuous Service, a Grantee may be granted Options
for up to an additional 250,000 Shares which shall not count against the limit set forth in the
previous sentence. The foregoing limitations shall be adjusted proportionately in connection with
any change in the Company’s capitalization pursuant to Section 10, below. To the extent required
by Section 162(m) of the Code or the regulations thereunder, in applying the foregoing limitations
with respect to a Grantee, if any Option is canceled, the canceled Option shall continue to count
against the maximum number of Shares with respect to which Options may be granted to the Grantee.
For this purpose, the repricing of an Option shall be treated as the cancellation of the existing
Option and the grant of a new Option.




          (g) Early Exercise. The Award Agreement may, but need not, include a provision
whereby the Grantee may elect at any time while an Employee, Director or Consultant to exercise any
part or all of the Award prior to full vesting of the Award. Any unvested Shares received pursuant
to such exercise may be subject to a repurchase right in favor of the Company or a Related Entity
or to any other restriction the Administrator determines to be appropriate.




          (h) Term of Award. The term of each Award shall be the term stated in the Award
Agreement, provided, however, that the term of an Incentive Stock Option shall be no more than
ten (10) years from the date of grant thereof. However, in the case of an Incentive Stock Option
granted to a Grantee who, at the time the Option is granted, owns stock representing more than
ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or
Subsidiary of the Company, the term of the Incentive Stock Option shall be five (5) years from the
date of grant thereof or such shorter term as may be provided in the Award Agreement.




          (i) Transferability of Awards. Non-Qualified Stock Options shall be transferable (i)
by will or by the laws of descent and distribution, or (ii) to the extent and in the manner
authorized by the Administrator by gift to members of the Grantee’s Immediate Family. Incentive
Stock Options and other Awards may not be sold, pledged, assigned, hypothecated, transferred, or
disposed of in any manner other than by will or by the laws of descent or distribution and may be
exercised, during the lifetime of the Grantee, only by the Grantee. Notwithstanding the foregoing,
the Grantee may designate a member of the Grantee’s Immediate Family as a beneficiary of the
Grantee’s Incentive Stock Option or Non-Qualified Stock Option in the event of the Grantee’s death
on a beneficiary designation form provided by the Administrator.




          (j) Time of Granting Awards. The date of grant of an Award shall for all purposes be
the date on which the Administrator makes the determination to grant such Award, or such other date
as is determined by the Administrator.




     7. Award Exercise or Purchase Price, Consideration and Taxes.



          (a) Exercise or Purchase Price. The exercise or purchase price, if any, for an Award
shall be as follows:




               (i) In the case of an Incentive Stock Option:



                    (A) granted to an Employee who, at the time of the grant of such Incentive Stock Option owns
stock representing more than ten percent (10%) of the voting power of all classes of stock of the
Company or any Parent or Subsidiary of the Company, the per Share exercise



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price shall be not less than one hundred ten percent (110%) of the Fair Market Value per Share
on the date of grant; or



                    (B) granted to any Employee other than an Employee described in the preceding paragraph, the
per Share exercise price shall be not less than one hundred percent (100%) of the Fair Market Value
per Share on the date of grant.



               (ii) In the case of a Non-Qualified Stock Option, the per Share exercise price shall be not
less than fifty percent (50%) of the Fair Market Value per Share on the date of grant unless
otherwise determined by the Administrator.



               (iii) In the case of Awards intended to qualify as Performance-Based Compensation, the
exercise or purchase price, if any, shall be not less than one hundred percent (100%) of the Fair
Market Value per Share on the date of grant.



               (iv) Notwithstanding the foregoing provisions of this Section 7(a), in the case of an Award
issued pursuant to Section 6(c), above, the exercise or purchase price for the Award shall be
determined in accordance with the provisions of the relevant instrument evidencing the agreement to
issue such Award.



          (b) Consideration. Subject to Applicable Laws, the consideration to be paid for the
Shares to be issued upon exercise or purchase of an Award including the method of payment, shall be
determined by the Administrator (and, in the case of an Incentive Stock Option, shall be determined
at the time of grant). In addition to any other types of consideration the Administrator may
determine, the Administrator is authorized to accept as consideration for Shares issued under the
Plan the following provided that the portion of the consideration equal to the par value of the
Shares must be paid in cash or other legal consideration permitted by the Delaware General
Corporation Law:




               (i) cash;



               (ii) check;



               (iii) delivery of Grantee’s promissory note with such recourse, interest, security, and
redemption provisions as the Administrator determines as appropriate (but only to the extent that
the acceptance or terms of the promissory note would not violate an Applicable Law);



               (iv) if the exercise or purchase occurs on or after the Registration Date, surrender of Shares
or delivery of a properly executed form of attestation of ownership of Shares as the Administrator
may require which have a Fair Market Value on the date of surrender or attestation equal to the
aggregate exercise price of the Shares as to which said Award shall be exercised, provided,
however, that Shares acquired under the Plan or any other equity compensation plan or agreement of
the Company must have been held by the Grantee for a period of more than six (6) months;



               (v) with respect to Options, if the exercise occurs on or after the Registration Date, payment
through a broker-dealer sale and remittance procedure pursuant to which the Grantee (A) shall
provide written instructions to a Company designated brokerage firm to effect the immediate sale of
some or all of the purchased Shares and remit to the Company sufficient funds to cover the
aggregate exercise price payable for the purchased Shares and (B) shall provide written directives
to



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the Company to deliver the certificates for the purchased Shares directly to such brokerage
firm in order to complete the sale transaction; or



               (vi) any combination of the foregoing methods of payment.



          (c) Taxes. No Shares shall be delivered under the Plan to any Grantee or other person
until such Grantee or other person has made arrangements acceptable to the Administrator for the
satisfaction of any non-U.S., federal, state, or local income and employment tax withholding
obligations, including, without limitation, obligations incident to the receipt of Shares or the
disqualifying disposition of Shares received on exercise of an Incentive Stock Option. Upon
exercise of an Award the Company shall withhold or collect from Grantee an amount sufficient to
satisfy such tax obligations.




     8. Procedure for Exercise; Rights as a Stockholder.



          (a) Any Award granted hereunder shall be exercisable at such times and under such conditions
as determined by the Administrator under the terms of the Plan and specified in the Award
Agreement.




          (b) An Award shall be deemed to be exercised when written notice of such exercise has been
given to the Company in accordance with the terms of the Award by the person entitled to exercise
the Award and full payment for the Shares with respect to which the Award is exercised has been
made, including, to the extent selected, use of the broker-dealer sale and remittance procedure to
pay the purchase price as provided in Section 7(b)(v).




     9. Conditions Upon Issuance of Shares.



          (a) Shares shall not be issued pursuant to the exercise of an Award unless the exercise of
such Award and the issuance and delivery of such Shares pursuant thereto shall comply with all
Applicable Laws, and shall be further subject to the approval of counsel for the Company with
respect to such compliance.




          (b) As a condition to the exercise of an Award, the Company may require the person exercising
such Award to represent and warrant at the time of any such exercise that the Shares are being
purchased only for investment and without any present intention to sell or distribute such Shares
if, in the opinion of counsel for the Company, such a representation is required by any Applicable
Laws.




     10. Adjustments Upon Changes in Capitalization. Subject to any required action by the
stockholders of the Company, the number of Shares covered by each outstanding Award, and the number
of Shares which have been authorized for issuance under the Plan but as to which no Awards have yet
been granted or which have been returned to the Plan, the exercise or purchase price of each such
outstanding Award, the maximum number of Shares with respect to which Options may be granted to any
Grantee in any fiscal year of the Company, as well as any other terms that the Administrator
determines require adjustment shall be proportionately adjusted for (i) any increase or decrease in
the number of issued Shares resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Shares, or similar transaction affecting the Shares,
(ii) any other increase or decrease in the number of issued Shares effected without receipt of
consideration by the Company, or (iii) as the Administrator may determine in its discretion, any
other transaction with



11









 







respect to Common Stock including a corporate merger, consolidation, acquisition of property
or stock, separation (including a spin-off or other distribution of stock or property),
reorganization, liquidation (whether partial or complete) or any similar transaction; provided,
however that conversion of any convertible securities of the Company shall not be deemed to have
been “effected without receipt of consideration.” Such adjustment shall be made by the
Administrator and its determination shall be final, binding and conclusive. Except as the
Administrator determines, no issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment by reason hereof
shall be made with respect to, the number or price of Shares subject to an Award.



     11. Corporate Transactions.



          (a) Termination of Award to Extent Not Assumed in Corporate Transaction. Effective
upon the consummation of a Corporate Transaction, all outstanding Awards under the Plan shall
terminate. However, all such Awards shall not terminate to the extent they are Assumed in
connection with the Corporate Transaction.




          (b) Acceleration of Award Upon Corporate Transaction.




               (i) Corporate Transaction Prior to the Initial Exercisability Date. Except as provided
otherwise in an individual Award Agreement, in the event of any Corporate Transaction prior to the
Initial Exercisability Date, there will not be any acceleration of vesting or exercisability of any
Award.



               (ii) Corporate Transaction On or After the Initial Exercisability Date. Except as
provided otherwise in an individual Award Agreement, in the event of a Corporate Transaction on or
after the Initial Exercisability Date, each Award which is at the time outstanding under the Plan
automatically shall become fully vested and exercisable and be released from any repurchase or
forfeiture rights (other than repurchase rights exercisable at Fair Market Value), immediately
prior to the specified effective date of such Corporate Transaction, for all of the Shares at the
time represented by such Award, irrespective of whether the Award is Assumed or Replaced.



          (c) Effect of Acceleration on Incentive Stock Options. Any Incentive Stock Option
accelerated under this Section 11 in connection with a Corporate Transaction shall remain
exercisable as an Incentive Stock Option under the Code only to the extent the $100,000 dollar
limitation of Section 422(d) of the Code is not exceeded. To the extent such dollar limitation is
exceeded, the excess Options shall be treated as Non-Qualified Stock Options.




     12. Effective Date and Term of Plan. The Plan shall become effective upon the earlier
to occur of its adoption by the Board or its approval by the stockholders of the Company. It shall
continue in effect for a term of ten (10) years unless sooner terminated. Subject to Section 17
below, and Applicable Laws, Awards may be granted under the Plan upon its becoming effective.



     13. Amendment, Suspension or Termination of the Plan.



          (a) The Board may at any time amend, suspend or terminate the Plan. To the extent necessary to
comply with Applicable Laws, the Company shall obtain stockholder approval of any Plan amendment in
such a manner and to such a degree as required.




12









 








          (b) No Award may be granted during any suspension of the Plan or after termination of the
Plan.




          (c) No suspension or termination of the Plan (including termination of the Plan under
Section 12, above) shall adversely affect any rights under Awards already granted to a Grantee.




     14. Reservation of Shares.



          (a) The Company, during the term of the Plan, will at all times reserve and keep available
such number of Shares as shall be sufficient to satisfy the requirements of the Plan.




          (b) The inability of the Company to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Company’s counsel to be necessary to the lawful
issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect of
the failure to issue or sell such Shares as to which such requisite authority shall not have been
obtained.




     15. No Effect on Terms of Employment/Consulting Relationship. The Plan shall not
confer upon any Grantee any right with respect to the Grantee’s Continuous Service, nor shall it
interfere in any way with his or her right or the right of the Company or any Related Entity to
terminate the Grantee’s Continuous Service at any time, with or without Cause, and with or without
notice. The ability of the Company or any Related Entity to terminate the employment of a Grantee
who is employed at will is in no way affected by its determination that the Grantee’s Continuous
Service has been terminated for Cause for the purposes of this Plan.



     16. No Effect on Retirement and Other Benefit Plans. Except as specifically provided
in a retirement or other benefit plan of the Company or a Related Entity, Awards shall not be
deemed compensation for purposes of computing benefits or contributions under any retirement plan
of the Company or a Related Entity, and shall not affect any benefits under any other benefit plan
of any kind or any benefit plan subsequently instituted under which the availability or amount of
benefits is related to level of compensation. The Plan is not a “Retirement Plan” or “Welfare
Plan” under the Employee Retirement Income Security Act of 1974, as amended.



     17. Stockholder Approval. The grant of Incentive Stock Options under the Plan,
excluding Incentive Stock Options issued in substitution for outstanding Incentive Stock Options
pursuant to Section 424(a) of the Code, shall be subject to approval of the Plan by the
stockholders of the Company within twelve (12) months before or after the date the Plan is adopted.
Such stockholder approval shall be obtained in the degree and manner required under Applicable
Laws. The Administrator may grant Incentive Stock Options under the Plan prior to approval by the
stockholders, but until such approval is obtained, no such Incentive Stock Option shall be
exercisable. In the event that stockholder approval is not obtained within the twelve (12) month
period provided above, all Incentive Stock Options previously granted under the Plan shall be
exercisable as Non-Qualified Stock Options.



     18. Effect of Section 162(m) of the Code. Section 162(m) of the Code does not apply
to the Plan prior to the Registration Date or such earlier time that the Company first becomes
subject to the reporting obligations of Section 12 of the Exchange Act. Following the Registration
Date or such earlier time that the Company first becomes subject to the reporting obligations of
Section 12 of the Exchange Act, the Plan, and all Awards (except Awards of Restricted Stock that
vest over time) issued thereunder, are intended to be exempt from the application of Section 162(m)
of the Code, which



13









 







restricts under certain circumstances the Federal income tax deduction for compensation paid
by a public company to named executives in excess of $1 million per year. The exemption is based
on Treasury Regulation Section 1.162-27(f), in the form existing on the effective date of the Plan,
with the understanding that such regulation generally exempts from the application of
Section 162(m) of the Code compensation paid pursuant to a plan that existed before a company
becomes publicly held. Under such Treasury Regulation, this exemption is available to the Plan for
the duration of the period that lasts until the earliest of (i) the expiration of the Plan,
(ii) the material modification of the Plan, (iii) the exhaustion of the maximum number of shares of
Common Stock available for Awards under the Plan, as set forth in Section 3(a), (iv) the first
meeting of shareholders at which directors are to be elected that occurs after the close of the
third calendar year following the calendar year in which the Company first becomes subject to the
reporting obligations of Section 12 of the Exchange Act, or (v) such other date required by
Section 162(m) of the Code and the rules and regulations promulgated thereunder. To the extent
that the Administrator determines as of the date of grant of an Award that (i) the Award is
intended to qualify as Performance-Based Compensation and (ii) the exemption described above is no
longer available with respect to such Award, such Award shall not be effective until any
stockholder approval required under Section 162(m) of the Code has been obtained.



     19. Unfunded Obligation. Grantees shall have the status of general unsecured
creditors of the Company. Any amounts payable to Grantees pursuant to the Plan shall be unfunded
and unsecured obligations for all purposes, including, without limitation, Title I of the Employee
Retirement Income Security Act of 1974, as amended. Neither the Company nor any Related Entity
shall be required to segregate any monies from its general funds, or to create any trusts, or
establish any special accounts with respect to such obligations. The Company shall retain at all
times beneficial ownership of any investments, including trust investments, which the Company may
make to fulfill its payment obligations hereunder. Any investments or the creation or maintenance
of any trust or any Grantee account shall not create or constitute a trust or fiduciary
relationship between the Administrator, the Company or any Related Entity and a Grantee, or
otherwise create any vested or beneficial interest in any Grantee or the Grantee’s creditors in any
assets of the Company or a Related Entity. The Grantees shall have no claim against the Company or
any Related Entity for any changes in the value of any assets that may be invested or reinvested by
the Company with respect to the Plan.



14









 





DISCOVERY MINING, INC. 2003 STOCK INCENTIVE PLAN




NOTICE OF STOCK OPTION AWARD




Grantee’s Name and Address:
 

 

 

 




     You (the “Grantee”) have been granted an option to purchase shares of Common Stock, subject to
the terms and conditions of this Notice of Stock Option Award (the “Notice”), the Discovery Mining,
Inc. 2003 Stock Incentive Plan, as amended from time to time (the “Plan”) and the Stock Option
Award Agreement (the “Option Agreement”) attached hereto, as follows. Unless otherwise defined
herein, the terms defined in the Plan shall have the same defined meanings in this Notice.



Award Number




Date of Award




Vesting Commencement Date




Exercise Price per Share




Total Number of Shares Subject to the Option (the “Shares”)




Total Exercise Price




Type of Option:                Non-Qualified Stock Option




Expiration Date:




Vesting and Exercise Schedule:




     Subject to the Grantee’s Continuous Service and other limitations set forth in this Notice,
the Plan and the Option Agreement, the Option shall vest, in whole or in part, in accordance with
the following schedule:



     One-third of the Shares subject to the Option shall vest twelve months after the Vesting
Commencement Date, and an additional 1/36 of the Shares subject to the Option shall vest on each
monthly anniversary of the Vesting Commencement Date thereafter such that the Option will be fully
vested three years after the Vesting Commencement Date.




     Except as described hereafter, the vested portion of the Option may not be exercised until the
earlier of the Registration Date and the seventh anniversary of the Date of Award specified above
(the “Initial Exercisability Date”). However, should a Corporate Transaction, as defined in
section 2 (n) (v) of the Plan, take the form of a sale for cash, then all of the Shares represented
by this Award shall become fully vested and exercisable according to the terms of section 11 (b)
(ii) of the Plan. After the Initial Exercisability Date occurs, the unvested portion of



1









 







the Option shall be exercisable as it vests in accordance with the Vesting Schedule set forth
above, subject to the Grantee’s Continuous Service and other limitations set forth in the Notice,
the Plan and the Option Agreement.



     During any authorized leave of absence, the vesting of the Option as provided in this schedule
shall be suspended after the leave of absence exceeds a period of ninety (90) days. Vesting of the
Option shall resume upon the Grantee’s termination of the leave of absence and return to service to
the Company or a Related Entity. The Vesting Schedule of the Option shall be extended by the
length of the suspension.



     In the event of termination of the Grantee’s Continuous Service for Cause, the Grantee’s right
to exercise the Option shall terminate concurrently with the termination of the Grantee’s
Continuous Service, except as otherwise determined by the Administrator.



     In the event of the Grantee’s change in status from Employee to Consultant or from an Employee
whose customary employment is 20 hours or more per week to an Employee whose customary employment
is fewer than 20 hours per week, vesting of the Option shall continue only to the extent determined
by the Administrator as of such change in status.



     IN WITNESS WHEREOF, the Company and the Grantee have executed this Notice and agree that the
Option is to be governed by the terms and conditions of this Notice, the Plan, and the Option
Agreement.



	 	 	 	 	 
	 	Discovery Mining, Inc.

a Delaware corporation

 	 
	 	By:  	 	 
	 	 	 	 
	 	Title:  	 	 
	 




THE GRANTEE ACKNOWLEDGES AND AGREES THAT THE SHARES SUBJECT TO THE OPTION SHALL VEST, IF AT ALL,
ONLY DURING THE PERIOD OF THE GRANTEE’S CONTINUOUS SERVICE (NOT THROUGH THE ACT OF BEING HIRED,
BEING GRANTED THE OPTION OR ACQUIRING SHARES HEREUNDER). THE GRANTEE FURTHER ACKNOWLEDGES AND
AGREES THAT NOTHING IN THIS NOTICE, THE OPTION AGREEMENT, OR THE PLAN SHALL CONFER UPON THE GRANTEE
ANY RIGHT WITH RESPECT TO FUTURE AWARDS OR CONTINUATION OF THE GRANTEE’S CONTINUOUS SERVICE, NOR
SHALL IT INTERFERE IN ANY WAY WITH THE GRANTEE’S RIGHT OR THE RIGHT OF THE COMPANY OR RELATED
ENTITY TO WHICH THE GRANTEE PROVIDES SERVICES TO TERMINATE THE GRANTEE’S CONTINUOUS SERVICE, WITH
OR WITHOUT CAUSE, AND WITH OR WITHOUT NOTICE. THE GRANTEE ACKNOWLEDGES THAT UNLESS THE GRANTEE HAS
A WRITTEN EMPLOYMENT AGREEMENT WITH THE COMPANY TO THE CONTRARY, THE GRANTEE’S STATUS IS AT WILL.




     The Grantee acknowledges receipt of a copy of the Plan and the Option Agreement, and
represents that he or she is familiar with the terms and provisions thereof, and hereby accepts the
Option subject to all of the terms and provisions hereof and thereof. The Grantee has reviewed
this Notice, the Plan, and the Option Agreement in their entirety, has had an opportunity to obtain
the advice of counsel prior to executing this Notice, and fully understands all provisions of this
Notice, the Plan and the Option Agreement. The Grantee hereby agrees that all disputes arising out
of or relating to this Notice, the Plan and the Option Agreement shall be resolved in accordance
with Section 21 of the Option Agreement. The Grantee further agrees to notify the Company upon any
change in the residence address indicated in this Notice.



	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	Signed:	 	 	 	 
	 

	 	 

	 	 	 	 

Grantee
	 	 






2









 





Award Number:                     




DISCOVERY MINING, INC. 2003 STOCK INCENTIVE PLAN




STOCK OPTION AWARD AGREEMENT




     1. Grant of Option. Discovery Mining, Inc., a Delaware corporation (the “Company”),
hereby grants to the Grantee (the “Grantee”) named in the Notice of Stock Option Award (the
“Notice”), an option (the “Option”) to purchase the Total Number of Shares of Common Stock subject
to the Option (the “Shares”) set forth in the Notice, at the Exercise Price per Share set forth in
the Notice (the “Exercise Price”) subject to the terms and provisions of the Notice, this Stock
Option Award Agreement (the “Option Agreement”) and the Company’s 2003 Stock Incentive Plan, as
amended from time to time (the “Plan”), which are incorporated herein by reference. Unless
otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in
this Option Agreement.



     If designated in the Notice as an Incentive Stock Option, the Option is intended to qualify as
an Incentive Stock Option as defined in Section 422 of the Code. However, notwithstanding such
designation, to the extent that the aggregate Fair Market Value of Shares subject to Options
designated as Incentive Stock Options which become exercisable for the first time by the Grantee
during any calendar year (under all plans of the Company or any Parent or Subsidiary of the
Company) exceeds $100,000, such excess Options, to the extent of the Shares covered thereby in
excess of the foregoing limitation, shall be treated as Non-Qualified Stock Options. For this
purpose, Incentive Stock Options shall be taken into account in the order in which they were
granted, and the Fair Market Value of the Shares shall be determined as of the date the Option with
respect to such Shares is awarded.



     2. Exercise of Option.



          (a) Right to Exercise. The Option shall be exercisable during its term in accordance
with the Vesting Schedule set out in the Notice and with the applicable provisions of the Plan and
this Option Agreement. The Option shall be subject to the provisions of Section 11 of the Plan
relating to the exercisability or termination of the Option in the event of a Corporate Transaction
or Change in Control. The Grantee shall be subject to reasonable limitations on the number of
requested exercises during any monthly or weekly period as determined by the Administrator. In no
event shall the Company issue fractional Shares.




          (b) Method of Exercise. The Option shall be exercisable by delivery of an exercise
notice (a form of which is attached as Exhibit A) or by such other procedure as specified from time
to time by the Administrator which shall state the election to exercise the Option, the whole
number of Shares in respect of which the Option is being exercised, and such other provisions as
may be required by the Administrator. The exercise notice shall be delivered in person, by
certified mail, or by such other method (including electronic transmission) as determined from time
to time by the Administrator to the Company accompanied by payment of the Exercise Price. The
Option shall be deemed to be exercised upon receipt by the Company of




1









 




such notice accompanied by the Exercise Price, which, to the extent selected, shall be deemed
to be satisfied by use of the broker-dealer sale and remittance procedure to pay the Exercise Price
provided in Section 4(d), below.




          (c) Taxes. No Shares will be delivered to the Grantee or other person pursuant to the
exercise of the Option until the Grantee or other person has made arrangements acceptable to the
Administrator for the satisfaction of applicable income tax and employment tax withholding
obligations, including, without limitation, such other tax obligations of the Grantee incident to
the receipt of Shares or the disqualifying disposition of Shares received on exercise of an
Incentive Stock Option. Upon exercise of the Option, the Company or the Grantee’s employer may
offset or withhold (from any amount owed by the Company or the Grantee’s employer to the Grantee)
or collect from the Grantee or other person an amount sufficient to satisfy such tax obligations
and/or the employer’s withholding obligations.




     3. Grantee’s Representations.



          (a) Investment Representation. The Grantee understands that neither the Option nor the
Shares exercisable pursuant to the Option have been registered under the Securities Act of 1933, as
amended or any United States securities laws. In the event the Shares purchasable pursuant to the
exercise of the Option have not been registered under the Securities Act of 1933, as amended, at
the time the Option is exercised, the Grantee shall, if requested by the Company, concurrently with
the exercise of all or any portion of the Option, deliver to the Company his or her Investment
Representation Statement in the form attached hereto as Exhibit B.




          (b) California Residents. If a resident of the state of California, the Grantee
further represents and warrants that the Grantee either (i) has a preexisting personal or business
relationship with the Company or any of its officers, directors or controlling persons or (ii) by
reason of the Grantee’s business or financial experience or the business or financial experience of
the Grantee’s professional advisor, who is not affiliated with and is not compensated by the
Company or any affiliate or selling agent of the Company, directly or indirectly, has the capacity
to protect the Grantee’s interests in connection with the grant of the Option and the purchase of
the Shares purchasable pursuant to the exercise of the Option, and Grantee represents and warrants
that such professional advisor is either (A) a person who, as a regular part of his or her
business, is customarily relied upon by others for investment recommendations or decisions, and who
is customarily compensated for such services, either specifically or by way of compensation for
related professional services; (B) an attorney; (C) a certified public accountant; (D) a registered
broker-dealer, registered representative, or licensed investment advisor; or (E) a bank.




     4. Method of Payment. Payment of the Exercise Price shall be made by any of the
following, or a combination thereof, at the election of the Grantee; provided, however, that such
exercise method does not then violate any Applicable Law, provided further, that the portion of the
Exercise Price equal to the par value of the Shares must be paid in cash or other legal
consideration permitted by the Delaware General Corporation Law:



          (a) cash;




2









 





          (b) check;




          (c) if the exercise occurs on or after the Registration Date, surrender of Shares or delivery
of a properly executed form of attestation of ownership of Shares as the Administrator may require
which have a Fair Market Value on the date of surrender or attestation equal to the aggregate
Exercise Price of the Shares as to which the Option is being exercised, provided, however, that
Shares acquired under the Plan or any other equity compensation plan or agreement of the Company
must have been held by the Grantee for a period of more than six (6) months; or




          (d) if the exercise occurs on or after the Registration Date, payment through a broker-dealer
sale and remittance procedure pursuant to which the Grantee (i) shall provide written instructions
to a Company-designated brokerage firm to effect the immediate sale of some or all of the purchased
Shares and remit to the Company sufficient funds to cover the aggregate exercise price payable for
the purchased Shares and (ii) shall provide written directives to the Company to deliver the
certificates for the purchased Shares directly to such brokerage firm in order to complete the sale
transaction.




     5. Restrictions on Exercise. The Option may not be exercised if the issuance of the
Shares subject to the Option upon such exercise would constitute a violation of any Applicable
Laws. In addition, the Option may not be exercised until such time as the Plan has been approved
by the stockholders of the Company.



     6. Change of Continuous Service. In the event of the Grantee’s change in status from
Employee, Director or Consultant to any other status of Employee, Director or Consultant, the
Option shall remain in effect and vesting of the Option shall continue only to the extent
determined by the Administrator as of such change in status; provided, however, with respect to any
Incentive Stock Option that shall remain in effect after a change in status from Employee to
Director or Consultant, such Incentive Stock Option shall cease to be treated as an Incentive Stock
Option and shall be treated as a Non-Qualified Stock Option on the day three (3) months and one (1)
day following such change in status.



     7. Termination of Continuous Service Prior to Initial Exercisability Date. In the
event the Grantee’s Continuous Service terminates prior to the Initial Exercisability Date for any
reason including, but not limited to, voluntary resignation, involuntary termination with or
without Cause, Disability or death, the Option (including the vested portion) shall terminate
concurrently with the termination of the Grantee’s Continuous Service.



     8. Termination of Continuous Service After Initial Exercisability Date. In the event
of termination of the Grantee’s Continuous Service after the Initial Exercisability Date, other
than for Cause, the Grantee may, but only during the Post-Termination Exercise Period, exercise the
portion of the Option that was vested at the date of such termination (the “Termination Date”). In
the event of termination of the Grantee’s Continuous Service after the Initial Exercisability Date
for Cause, the Grantee’s right to exercise the Option shall, except as otherwise determined by the
Administrator, terminate concurrently with the termination of the Grantee’s Continuous Service
(also the “Termination Date”). In no event shall the Option be exercised later than the Expiration



3









 







Date set forth in the Notice. Except as provided in Sections 9 and 10 below, to the extent
that the Option was unvested on the Termination Date, or if the Grantee does not exercise the
vested portion of the Option within the Post-Termination Exercise Period, the Option shall
terminate.



     9. Disability of Grantee After Initial Exercisability Date. In the event the
Grantee’s Continuous Service terminates after the Initial Exercisability Date as a result of his or
her Disability, the Grantee may, but only within twelve (12) months from the Termination Date (but
in no event later than the Expiration Date), exercise the portion of the Option that was vested on
the Termination Date; provided, however, that if such Disability is not a “disability” as such term
is defined in Section 22(e)(3) of the Code and the Option is an Incentive Stock Option, such
Incentive Stock Option shall cease to be treated as an Incentive Stock Option and shall be treated
as a Non-Qualified Stock Option on the day three (3) months and one (1) day following the
Termination Date. To the extent that the Option was unvested on the Termination Date, or if the
Grantee does not exercise the vested portion of the Option within the time specified herein, the
Option shall terminate. Section 22(e)(3) of the Code provides that an individual is permanently
and totally disabled if he or she is unable to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than
twelve (12) months.



     10. Death of Grantee After Initial Exercisability Date. In the event of the
termination of the Grantee’s Continuous Service after the Initial Exercisability Date as a result
of his or her death, or in the event of the Grantee’s death during the Post-Termination Exercise
Period or during the twelve (12) month period following the Grantee’s termination of Continuous
Service after the Initial Exercisability Date as a result of his or her Disability, the Grantee’s
estate, or a person who acquired the right to exercise the Option by bequest or inheritance, may
exercise the portion of the Option that was vested at the date of termination, within twelve (12)
months from the date of death (but in no event later than the Expiration Date). To the extent that
the Option was unvested on the date of death, or if the vested portion of the Option is not
exercised within the time specified herein, the Option shall terminate.



     11. Transferability of Option. The Option, if an Incentive Stock Option, may not be
transferred in any manner other than by will or by the laws of descent and distribution and may be
exercised during the lifetime of the Grantee only by the Grantee. The Option, if a Non-Qualified
Stock Option, may not be transferred in any manner other than by will or by the laws of descent and
distribution, provided, however, that a Non-Qualified Stock Option may be transferred during the
lifetime of the Grantee by gift to members of the Grantee’s Immediate Family to the extent and in
the manner determined by the Administrator. Notwithstanding the foregoing, the Grantee may
designate members of the Grantee’s Immediate Family as beneficiaries of the Grantee’s Incentive
Stock Option or Non-Qualified Stock Option in the event of the Grantee’s death on a beneficiary
designation form provided by the Administrator. The terms of the Option shall be binding upon the
executors, administrators, heirs, successors and transferees of the Grantee.



     12. Term of Option. The Option must be exercised no later than the Expiration Date
set forth in the Notice or such earlier date as otherwise provided herein. After the Expiration
Date or such earlier date, the Option shall be of no further force or effect and may not be
exercised.



4









 





     13. Company’s Right of First Refusal.



          (a) Transfer Notice. Neither the Grantee nor a transferee (either being sometimes
referred to herein as the “Holder”) shall sell, hypothecate, encumber or otherwise transfer any
Shares or any right or interest therein without first complying with the provisions of this
Section 13 or obtaining the prior written consent of the Company. In the event the Holder desires
to accept a bona fide third-party offer for any or all of the Shares, the Holder shall provide the
Company with written notice (the “Transfer Notice”) of:




               (i) The Holder’s intention to transfer;



               (ii) The name of the proposed transferee;



               (iii) The number of Shares to be transferred; and



               (iv) The proposed transfer price or value and terms thereof.



          (b) First Refusal Exercise Notice. The Company shall have the right to purchase (the
“Right of First Refusal”) all but not less than all, of the Shares which are described in the
Transfer Notice (the “Offered Shares”) at any time within forty-five (45) days after receipt of the
Transfer Notice (the “Option Period”), provided, however, that if the Offered Shares are not Mature
Shares (as defined below) then the Option Period shall be extended by the number of days necessary
for the Offered Shares to become Mature Shares. The Offered Shares shall be repurchased at (i) the
per share price or value and in accordance with the terms stated in the Transfer Notice (subject to
Section 13(c) below) or (ii) the Fair Market Value of the Shares on the date on which the purchase
is to be effected if no consideration is paid pursuant to the terms stated in the Transfer Notice,
which Right of First Refusal shall be exercised by written notice (the “First Refusal Exercise
Notice”) to the Holder. During the Option Period or the 90-day period specified in Section 13(e)
below, the Company may exercise its Repurchase Right (as set forth in Section 14 below) in lieu of
or in addition to its Right of First Refusal if the Repurchase Right is or becomes exercisable
during the Option Period or such 90-day period. “Mature Shares” shall mean vested Shares that have
been held by the Holder (and any successor Holder) for a period of more than six (6) months after
the Shares have vested.




          (c) Payment Terms. The Company shall consummate the purchase of the Offered Shares on
the terms set forth in the Transfer Notice within 30 days after delivery of the First Refusal
Exercise Notice; provided, however, that in the event the Transfer Notice provides for the payment
for the Offered Shares other than in cash, the Company and/or its assigns shall have the right to
pay for the Offered Shares by the discounted cash equivalent of the consideration described in the
Transfer Notice as reasonably determined by the Administrator. Upon payment for the Offered Shares
to the Holder or into escrow for the benefit of the Holder, the Company or its assigns shall become
the legal and beneficial owner of the Offered Shares and all rights and interest therein or related
thereto, and the Company shall have the right to transfer the Offered Shares to its own name or its
assigns without further action by the Holder.




          (d) Assignment. Whenever the Company shall have the right to purchase Shares under
this Right of First Refusal, the Company may designate and assign one or more




5









 




employees, officers, directors or stockholders of the Company or other persons or
organizations, to exercise all or a part of the Company’s Right of First Refusal.




          (e) Non-Exercise. If the Company and/or its assigns do not collectively elect to
exercise the Right of First Refusal within the Option Period or such earlier time if the Company
and/or its assigns notifies the Holder that it will not exercise the Right of First Refusal, then
the Holder may transfer the Shares upon the terms and conditions stated in the Transfer Notice,
provided that:




               (i) The transfer is made within 90 days of the earlier of (A) the date the
Company and/or its assigns notify the Holder that the Right of First Refusal will
not be exercised or (B) the expiration of the Option Period; and



               (ii) The transferee agrees in writing that such Shares shall be held subject to
the provisions of this Option Agreement.



          (f) Expiration of Transfer Period. Following such 90-day period, no transfer of the
Offered Shares and no change in the terms of the transfer as stated in the Transfer Notice
(including the name of the proposed transferee) shall be permitted without a new written Transfer
Notice prepared and submitted in accordance with the requirements of this Right of First Refusal.




          (g) Termination of Right of First Refusal. The provisions of this Right of First
Refusal shall terminate as to all Shares upon the Registration Date.




          (h) Additional Shares or Substituted Securities. In the event of any transaction
described in Sections 10 or 11 of the Plan, any new, substituted or additional securities or other
property which is by reason of any such transaction distributed with respect to the Shares shall be
immediately subject to the Right of First Refusal, but only to the extent the Shares are at the
time covered by such right.




     14. Company’s Repurchase Right.



          (a) Grant of Repurchase Right. The Company is hereby granted the right to purchase
all or any portion of the Shares (the “Repurchase Right”), exercisable at any time (i) during the
ninety (90) day period commencing on the Termination Date, or (ii) during the ninety (90) day
period commencing upon any exercise of the Option that occurs after the Termination Date (together,
the “Share Repurchase Period”), provided, however, that if the Shares to be repurchased are not
Mature Shares then the Share Repurchase Period shall be extended by the number of days necessary
for the such Shares to become Mature Shares. “Mature Shares” shall mean vested Shares that have
been held by the Holder (and any successor Holder) for a period of more than six (6) months after
the Shares have vested.




          (b) Exercise of the Repurchase Right. The Repurchase Right shall be exercisable by
written notice delivered to each Holder of the Shares prior to the expiration of the Share
Repurchase Period. The notice shall indicate the number of Shares to be repurchased and the date
on which the repurchase is to be effected, such date to be not later than the last day of





6












 




the Share Repurchase Period. On the date on which the repurchase is to be effected, the Company
and/or its assigns shall pay to the Holder in cash or cash equivalents (including the cancellation
of any purchase-money indebtedness) an amount equal to the Fair Market Value on the date on which
the repurchase is to be effected of the Shares which are to be repurchased from the Holder. Upon
such payment or deposit into escrow for the benefit of the Holder, the Company and/or its assigns
shall become the legal and beneficial owner of the Shares being repurchased and all rights and
interest thereon or related thereto, and the Company shall have the right to transfer to its own
name or its assigns the number of Shares being repurchased, without further action by the Holder.




          (c) Assignment. Whenever the Company shall have the right to purchase Shares under
this Repurchase Right, the Company may designate and assign one or more employees, officers,
directors or stockholders of the Company or other persons or organizations, to exercise all or a
part of the Company’s Repurchase Right.



          (d) Termination of the Repurchase Right. The Repurchase Right shall terminate with
respect to any Shares for which it is not timely exercised. In addition, the Repurchase Right
shall terminate and cease to be exercisable with respect to all Shares upon the Registration Date.



          (e) Additional Shares or Substituted Securities. In the event of any transaction
described in Sections 10 or 11 of the Plan, any new, substituted or additional securities or other
property which is by reason of any such transaction distributed with respect to the Shares shall be
immediately subject to the Repurchase Right, but only to the extent the Shares are at the time
covered by such right.



     15. Stop-Transfer Notices. In order to ensure compliance with the restrictions on
transfer set forth in this Option Agreement, the Notice or the Plan, the Company may issue
appropriate “stop transfer” instructions to its transfer agent, if any, and, if the Company
transfers its own securities, it may make appropriate notations to the same effect in its own
records.



     16. Refusal to Transfer. The Company shall not be required (i) to transfer on its
books any Shares that have been sold or otherwise transferred in violation of any of the provisions
of this Option Agreement or (ii) to treat as owner of such Shares or to accord the right to vote or
pay dividends to any purchaser or other transferee to whom such Shares shall have been so
transferred.



     17. Tax Consequences. Set forth below is a brief summary as of the date of this Option
Agreement of some of the federal tax consequences of exercise of the Option and disposition of the
Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO
CHANGE. THE GRANTEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THE OPTION OR DISPOSING OF THE
SHARES.



          (a) Exercise of Incentive Stock Option. If the Option qualifies as an Incentive Stock
Option, there will be no regular federal income tax liability upon the exercise of the



7









 







Option, although the excess, if any, of the Fair Market Value of the Shares on the date of
exercise over the Exercise Price will be treated as income for purposes of the alternative minimum
tax for federal tax purposes and may subject the Grantee to the alternative minimum tax in the year
of exercise. However, the Internal Revenue Service issued proposed regulations which would subject
the Grantee to withholding at the time the Grantee exercises an Incentive Stock Option for Social
Security and Medicare based upon the excess, if any, of the Fair Market Value of the Shares on the
date of exercise over the Exercise Price. These proposed regulations are subject to further
modification by the Internal Revenue Service and, if adopted, would be effective only for the
exercise of an Incentive Stock Option that occurs two years after the regulations are issued in
final form.



          (b) Exercise of Incentive Stock Option Following Disability. If the Grantee’s
Continuous Service terminates as a result of Disability that is not permanent and total disability
as such term is defined in Section 22(e)(3) of the Code, to the extent permitted on the date of
termination, the Grantee must exercise an Incentive Stock Option within three (3) months of such
termination for the Incentive Stock Option to be qualified as an Incentive Stock Option. Section
22(e)(3) of the Code provides that an individual is permanently and totally disabled if he or she
is unable to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than twelve (12) months.



          (c) Exercise of Non-Qualified Stock Option. On exercise of a Non-Qualified Stock
Option, the Grantee will be treated as having received compensation income (taxable at ordinary
income tax rates) equal to the excess, if any, of the Fair Market Value of the Shares on the date
of exercise over the Exercise Price. If the Grantee is an Employee or a former Employee, the
Company will be required to withhold from the Grantee’s compensation or collect from the Grantee
and pay to the applicable taxing authorities an amount in cash equal to a percentage of this
compensation income at the time of exercise, and may refuse to honor the exercise and refuse to
deliver Shares if such withholding amounts are not delivered at the time of exercise.



          (d) Disposition of Shares. In the case of a Non-Qualified Stock Option, if Shares are
held for more than one year, any gain realized on disposition of the Shares will be treated as
long-term capital gain for federal income tax purposes. In the case of an Incentive Stock Option,
if Shares transferred pursuant to the Option are held for more than one year after receipt of the
Shares and are disposed more than two years after the Date of Award, any gain realized on
disposition of the Shares also will be treated as capital gain for federal income tax purposes and
subject to the same tax rates and holding periods that apply to Shares acquired upon exercise of a
Non-Qualified Stock Option. If Shares purchased under an Incentive Stock Option are disposed of
prior to the expiration of such one-year or two-year periods, any gain realized on such disposition
will be treated as compensation income (taxable at ordinary income rates) to the extent of the
difference between the Exercise Price and the lesser of (i) the Fair Market Value of the Shares on
the date of exercise, or (ii) the sale price of the Shares.



8









 





     18. Lock-Up Agreement.



          (a) Agreement. The Grantee, if requested by the Company and the lead underwriter of
any public offering of the Common Stock (the “Lead Underwriter”), hereby irrevocably agrees not to
sell, contract to sell, grant any option to purchase, transfer the economic risk of ownership in,
make any short sale of, pledge or otherwise transfer or dispose of any interest in any Common Stock
or any securities convertible into or exchangeable or exercisable for or any other rights to
purchase or acquire Common Stock (except Common Stock included in such public offering or acquired
on the public market after such offering) during the 180-day period following the effective date of
a registration statement of the Company filed under the Securities Act of 1933, as amended, or such
shorter period of time as the Lead Underwriter shall specify. The Grantee further agrees to sign
such documents as may be requested by the Lead Underwriter to effect the foregoing and agrees that
the Company may impose stop-transfer instructions with respect to such Common Stock subject to the
lock-up period until the end of such period. The Company and the Grantee acknowledge that each
Lead Underwriter of a public offering of the Company’s stock, during the period of such offering
and for the 180-day period thereafter, is an intended beneficiary of this Section 18.



          (b) No Amendment Without Consent of Underwriter. During the period from
identification of a Lead Underwriter in connection with any public offering of the Company’s Common
Stock until the earlier of (i) the expiration of the lock-up period specified in Section 18(a) in
connection with such offering or (ii) the abandonment of such offering by the Company and the Lead
Underwriter, the provisions of this Section 18 may not be amended or waived except with the consent
of the Lead Underwriter.



     19. Entire Agreement: Governing Law. The Notice, the Plan and this Option Agreement
constitute the entire agreement of the parties with respect to the subject matter hereof and
supersede in their entirety all prior undertakings and agreements of the Company and the Grantee
with respect to the subject matter hereof, and may not be modified adversely to the Grantee’s
interest except by means of a writing signed by the Company and the Grantee. Nothing in the
Notice, the Plan and this Option Agreement (except as expressly provided therein) is intended to
confer any rights or remedies on any persons other than the parties. The Notice, the Plan and this
Option Agreement are to be construed in accordance with and governed by the internal laws of the
State of California without giving effect to any choice of law rule that would cause the
application of the laws of any jurisdiction other than the internal laws of the State of California
to the rights and duties of the parties. Should any provision of the Notice, the Plan or this
Option Agreement be determined by a court of law to be illegal or unenforceable, such provision
shall be enforced to the fullest extent allowed by law and the other provisions shall nevertheless
remain effective and shall remain enforceable.



     20. Headings. The captions used in the Notice and this Option Agreement are inserted
for convenience and shall not be deemed a part of the Option for construction or interpretation.



9









 





     21. Dispute Resolution. The provisions of this Section 21 shall be the exclusive means
of resolving disputes arising out of or relating to the Notice, the Plan and this Option Agreement.
The Company, the Grantee, and the Grantee’s assignees (the “parties”) shall attempt in good faith
to resolve any disputes arising out of or relating to the Notice, the Plan and this Option
Agreement by negotiation between individuals who have authority to settle the controversy.
Negotiations shall be commenced by either party by notice of a written statement of the party’s
position and the name and title of the individual who will represent the party. Within thirty (30)
days of the written notification, the parties shall meet at a mutually acceptable time and place,
and thereafter as often as they reasonably deem necessary, to resolve the dispute. If the dispute
has not been resolved by negotiation, the parties agree that any suit, action, or proceeding
arising out of or relating to the Notice, the Plan or this Option Agreement shall be brought in the
United States District Court for the Northern District of California (or should such court lack
jurisdiction to hear such action, suit or proceeding, in a California state court in the County of
San Francisco) and that the parties shall submit to the jurisdiction of such court. The parties
irrevocably waive, to the fullest extent permitted by law, any objection the party may have to the
laying of venue for any such suit, action or proceeding brought in such court. THE PARTIES ALSO
EXPRESSLY WAIVE ANY RIGHT THEY HAVE OR MAY HAVE TO A JURY TRIAL OF ANY SUCH SUIT, ACTION OR
PROCEEDING. If any one or more provisions of this Section 21 shall for any reason be held invalid
or unenforceable, it is the specific intent of the parties that such provisions shall be modified
to the minimum extent necessary to make it or its application valid and enforceable.



     22. Notices. Any notice required or permitted hereunder shall be given in writing and
shall be deemed effectively given upon personal delivery, upon deposit for delivery by an
internationally recognized express mail courier service or upon deposit in the United States mail
by certified mail (if the parties are within the United States), with postage and fees prepaid,
addressed to the other party at its address as shown in these instruments, or to such other address
as such party may designate in writing from time to time to the other party.



10









 





EXHIBIT A




DISCOVERY MINING, INC. 2003 STOCK INCENTIVE PLAN




EXERCISE NOTICE




Attention: Secretary




     1. Effective as of today,                     , the undersigned (the “Grantee”) hereby elects to
exercise the Grantee’s option to purchase
                     shares of the Common Stock (the “Shares”) of
Discovery Mining, Inc. (the “Company”) under and pursuant to the Company’s 2003 Stock Incentive
Plan, as amended from time to time (the “Plan”) and the Non-Qualified Stock Option Award Agreement
(the “Option Agreement”) and Notice of Stock Option Award (the “Notice”) dated                     ,
                    . Unless otherwise defined herein, the terms defined in the Plan shall have the same
defined meanings in this Exercise Notice.



     2. Representations of the Grantee. The Grantee acknowledges that the Grantee has
received, read and understood the Notice, the Plan and the Option Agreement and agrees to abide by
and be bound by their terms and conditions.



     3. Rights as Stockholder. Until the stock certificate evidencing such Shares is
issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company), no right to vote or receive dividends or any other rights as a
stockholder shall exist with respect to the Shares, notwithstanding the exercise of the Option.
The Company shall issue (or cause to be issued) such stock certificate promptly after the Option is
exercised. No adjustment will be made for a dividend or other right for which the record date is
prior to the date the stock certificate is issued, except as provided in Section 10 of the Plan.



     The Grantee shall enjoy rights as a stockholder until such time as the Grantee disposes of the
Shares or the Company and/or its assignee(s) exercises the Right of First Refusal or the Repurchase
Right. Upon such exercise, the Grantee shall have no further rights as a holder of the Shares so
purchased except the right to receive payment for the Shares so purchased in accordance with the
provisions of the Option Agreement, and the Grantee shall forthwith cause the certificate(s)
evidencing the Shares so purchased to be surrendered to the Company for transfer or cancellation.



     4. Delivery of Payment. The Grantee herewith delivers to the Company the full
Exercise Price for the Shares, which, to the extent selected, shall be deemed to be satisfied by
use of the broker-dealer sale and remittance procedure to pay the Exercise Price provided in
Section 4(d) of the Option Agreement.



     5. Tax Consultation. The Grantee understands that the Grantee may suffer adverse tax
consequences as a result of the Grantee’s purchase or disposition of the Shares. The Grantee
represents that the Grantee has consulted with any tax consultants the Grantee deems advisable in
connection with the purchase or disposition of the Shares and that the Grantee is not relying on
the Company for any tax advice.



     6. Taxes. The Grantee agrees to satisfy all applicable federal, state and local
income and employment tax withholding obligations and herewith delivers to the Company the full
amount of such obligations or has made arrangements acceptable to the Company to satisfy such
obligations. In the case



1









 







of an Incentive Stock Option, the Grantee also agrees, as partial consideration for the
designation of the Option as an Incentive Stock Option, to notify the Company in writing within
thirty (30) days of any disposition of any shares acquired by exercise of the Option if such
disposition occurs within two (2) years from the Date of Award or within one (1) year from the date
the Shares were transferred to the Grantee. If the Company is required to satisfy any federal,
state or local income or employment tax withholding obligations as a result of such an early
disposition, the Grantee agrees to satisfy the amount of such withholding in a manner that the
Administrator prescribes.



     7. Restrictive Legends. The Grantee understands and agrees that the Company shall
cause the legends set forth below or legends substantially equivalent thereto, to be placed upon
any certificate(s) evidencing ownership of the Shares together with any other legends that may be
required by the Company or by state or federal securities laws:




THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE “ACT”) OR ANY STATE SECURITIES LAWS AND
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES,
SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN
COMPLIANCE THEREWITH.




THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER, A RIGHT OF FIRST REFUSAL AND A REPURCHASE
RIGHT HELD BY THE ISSUER OR ITS ASSIGNEE(S) AS SET FORTH IN THE
OPTION AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE
SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF
THE ISSUER. SUCH TRANSFER RESTRICTIONS, RIGHT OF FIRST REFUSAL AND
REPURCHASE RIGHT ARE BINDING ON TRANSFEREES OF THESE SHARES.



     8. Successors and Assigns. The Company may assign any of its rights under this
Exercise Notice to single or multiple assignees, and this agreement shall inure to the benefit of
the successors and assigns of the Company. Subject to the restrictions on transfer herein set
forth, this Exercise Notice shall be binding upon the Grantee and his or her heirs, executors,
administrators, successors and assigns.



     9. Headings. The captions used in this Exercise Notice are inserted for convenience
and shall not be deemed a part of this agreement for construction or interpretation.



     10. Dispute Resolution. The provisions of Section 21 of the Option Agreement shall be
the exclusive means of resolving disputes arising out of or relating to this Exercise Notice.



     11. Governing Law; Severability. This Exercise Notice is to be construed in
accordance with and governed by the internal laws of the State of California without giving effect
to any choice of law rule that would cause the application of the laws of any jurisdiction other
than the internal laws of the State of California to the rights and duties of the parties. Should
any provision of this Exercise Notice be determined by a court of law to be illegal or
unenforceable, such provision shall be enforced to the fullest



2









 







extent allowed by law and the other provisions shall nevertheless remain effective and shall
remain enforceable.



     12. Notices. Any notice required or permitted hereunder shall be given in writing and
shall be deemed effectively given upon personal delivery, upon deposit for delivery by an
internationally recognized express mail courier service or upon deposit in the United States mail
by certified mail (if the parties are within the United States), with postage and fees prepaid,
addressed to the other party at its address as shown below beneath its signature, or to such other
address as such party may designate in writing from time to time to the other party.



     13. Further Instruments. The parties agree to execute such further instruments and to
take such further action as may be reasonably necessary to carry out the purposes and intent of
this agreement.



     14. Entire Agreement. The Notice, the Plan and the Option Agreement are incorporated
herein by reference and together with this Exercise Notice constitute the entire agreement of the
parties with respect to the subject matter hereof and supersede in their entirety all prior
undertakings and agreements of the Company and the Grantee with respect to the subject matter
hereof, and may not be modified adversely to the Grantee’s interest except by means of a writing
signed by the Company and the Grantee. Nothing in the Notice, the Plan, the Option Agreement and
this Exercise Notice (except as expressly provided therein) is intended to confer any rights or
remedies on any persons other than the parties.



	 	 	 	 	 	 	 
	Submitted by:	 	 	 	Accepted by:
	 
	 	 	 	 	 	 
	GRANTEE:	 	 	 	DISCOVERY MINING, INC.
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 
	(Signature)
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Address:	 	 	 	Address:
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 


	 	 	 	 	 	 






3









 






EXHIBIT B




DISCOVERY MINING, INC. 2003 STOCK INCENTIVE PLAN




INVESTMENT REPRESENTATION STATEMENT




	 	 	 	 	 
	GRANTEE:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	COMPANY:

	 	DISCOVERY MINING, INC.	 	 
	 
	 	 	 	 
	SECURITY:

	 	COMMON STOCK	 	 
	 
	 	 	 	 
	AMOUNT:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	DATE:
	 	 	 	 
	 

	 	 

	 	 





In connection with the purchase of the above-listed Securities, the undersigned Grantee represents
to the Company the following:




     (a) Grantee is aware of the Company’s business affairs and financial condition and has
acquired sufficient information about the Company to reach an informed and knowledgeable decision
to acquire the Securities. Grantee is acquiring these Securities for investment for Grantee’s own
account only and not with a view to, or for resale in connection with, any “distribution” thereof
within the meaning of the Securities Act of 1933, as amended (the “Securities Act”).



     (b) Grantee acknowledges and understands that the Securities constitute “restricted
securities” under the Securities Act and have not been registered under the Securities Act in
reliance upon a specific exemption therefrom, which exemption depends upon among other things, the
bona fide nature of Grantee’s investment intent as expressed herein. Grantee further understands
that the Securities must be held indefinitely unless they are subsequently registered under the
Securities Act or an exemption from such registration is available. Grantee further acknowledges
and understands that the Company is under no obligation to register the Securities. Grantee
understands that the certificate evidencing the Securities will be imprinted with a legend which
prohibits the transfer of the Securities unless they are registered or such registration is not
required in the opinion of counsel satisfactory to the Company.



     (c) Grantee is familiar with the provisions of Rule 701 and Rule 144, each promulgated under
the Securities Act, which, in substance, permit limited public resale of “restricted securities”
acquired, directly or indirectly from the issuer thereof, in a non-public offering subject to the
satisfaction of certain conditions. Rule 701 provides that if the issuer qualifies under Rule 701
at the time of the grant of the Option to the Grantee, the exercise will be exempt from
registration under the Securities Act. In the event the Company becomes subject to the reporting
requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, ninety (90) days
thereafter (or such longer period as any market stand-off agreement may require) the Securities
exempt under Rule 701 may be resold, subject to the satisfaction of certain of the conditions
specified by Rule 144, including: (1) the resale being made through a broker in an unsolicited
“broker’s transaction” or in transactions directly with a market maker (as said term is defined
under the Securities Exchange Act of 1934); and, in the case of an affiliate, (2) the availability
of certain public information about the Company, (3) the amount of Securities being



4









 







sold during any
three month period not exceeding the limitations specified in Rule 144(e), and (4) the timely
filing of a Form 144, if applicable.



     In the event that the Company does not qualify under Rule 701 at the time of grant of the
Option, then the Securities may be resold in certain limited circumstances subject to the
provisions of Rule 144, which requires the resale to occur not less than one year after the later
of the date the Securities were sold by the Company or the date the Securities were sold by an
affiliate of the Company, within the meaning of Rule 144; and, in the case of acquisition of the
Securities by an affiliate, or by a non-affiliate who subsequently holds the Securities less than
two (2) years, the satisfaction of the conditions set forth in sections (1), (2), (3) and (4) of
the paragraph immediately above.



     (d) Grantee further understands that in the event all of the applicable requirements of Rule
701 or 144 are not satisfied, registration under the Securities Act, compliance with Regulation A,
or some other registration exemption will be required; and that, notwithstanding the fact that
Rules 144 and 701 are not exclusive, the Staff of the Securities and Exchange Commission has
expressed its opinion that persons proposing to sell private placement securities other than in a
registered offering and otherwise than pursuant to Rules 144 or 701 will have a substantial burden
of proof in establishing that an exemption from registration is available for such offers or sales,
and that such persons and their respective brokers who participate in such transactions do so at
their own risk. Grantee understands that no assurances can be given that any such other
registration exemption will be available in such event.



     (e) Grantee represents that Grantee is a resident of the state of                     .



	 	 	 
	 

	 	Signature of Grantee:
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	Date:                                         ,                    






5









 











DISCOVERY MINING, INC. 2003 STOCK INCENTIVE PLAN




NOTICE OF STOCK OPTION AWARD




     Grantee’s Name and Address:



	 	 	 
	 	 
	 
	 	 
	 
	 	 
	 
	 





     You (the “Grantee”) have been granted an option to purchase shares of Common Stock, subject to
the terms and conditions of this Notice of Stock Option Award (the “Notice”), the Discovery Mining,
Inc. 2003 Stock Incentive Plan, as amended from time to time (the “Plan”) and the Stock Option
Award Agreement (the “Option Agreement”) attached hereto, as follows. Unless otherwise defined
herein, the terms defined in the Plan shall have the same defined meanings in this Notice.



	 
	Award Number

	 

	Date of Award

	 

	Vesting Commencement Date

	 

	Exercise Price per Share

	 

	Total Number of Shares Subject
to the Option (the “Shares”)

	 

	Total Exercise Price

	 

	Type of Option:

	 

	Expiration Date:







All other terms and conditions of your original stock option grant, #___, dated                     , apply
to this grant.



DISCOVERY MINING, INC.




                                        




©Discovery Mining, Inc. 36 Graham St., Suite 210, PO Box 29194, San Francisco, CA 94129-0194

(415) 561-6780 www.discoverymining.com




 









 





DISCOVERY MINING, INC.

NOTICE OF GRANT OF STOCK OPTION




(US)




     Notice is hereby given of the following option grant (the “Option”) made to purchase shares of
Discovery Mining, Inc. (the “Company”) Common Stock:



Grantee:                                                             

Grant Date:                                                             

Type of Option: nonstatutory stock option

Grant Number:                                                             

Number of Shares:                     shares

Exercise Price: $                    per share

Vesting Commencement Date:                                         

Expiration Date:                                         




Exercise Schedule




     The Option shall vest and become exercisable with respect to (i) twenty-five percent (25%) of
the Shares subject to the Option upon Grantee’s completion of one (1) year of Continuous Service
measured from the Vesting Commencement Date and (ii) the balance of the Shares subject to the
Option in a series of forty-eight (48) successive equal monthly installments upon Grantee’s
completion of each additional month of Continuous Service over the thirty-six (36) month period
measured from the first year anniversary of the Vesting Commencement Date. In no event shall the
Option vest and become exercisable for any additional Shares after Grantee’s cessation of
Continuous Service. Notwithstanding anything to the contrary in this Notice, the Stock Option
Agreement or the 2003 Stock Incentive Plan (the “Plan”), in the event the acquisition of the
Company by Interwoven, Inc. is not consummated by November 23, 2008 or such later date as agreed to
by Interwoven, Inc. and the Company (the “Termination Date”) pursuant to Section 10.1(f) of the
Agreement and Plan of Merger by and among Interwoven, Inc., the Company and certain other parties
dated July 23, 2008 (the “Merger Agreement”), then the Option shall be of no force and effect,
shall not be exercisable, and shall expire on the first business day following the Termination
Date. This Option shall cease to be exercisable for a given Share on March 15th of the
calendar year following the calendar year in which such Share subject to the Option vests.



     Should Grantee request a reduction to his or her work commitment to less than thirty (30)
hours per week, then the Administrator shall have the right to extend the period over which the
Option shall thereafter vest and become exercisable for the Shares during the remainder of the
Option term. The decision whether or not to approve Grantee’s request for any reduced work
commitment shall be at the sole discretion of the Company. In no event shall any extension of the
Exercise Schedule for the Shares result in the extension of the Expiration Date of the Option.



     Grantee understands and agrees that the Option is offered subject to and in accordance with
the terms of the Plan. Grantee further agrees to be bound by the terms of the Plan and the terms of
the Option as set forth in the Stock Option Agreement attached hereto; provided,
further, that the Option shall not be subject to any accelerated vesting, lapse of a
repurchase or forfeiture right, or any other rights provided in Section 11 of the Plan.


No Employment or Service Contract. Nothing in this Notice or in the attached Stock Option
Agreement or in the Plan shall confer upon Grantee any right to continue in Continuous Service for
any period of specific duration or interfere with or otherwise restrict in any way the rights of
the Company (or any
Related Entity employing or retaining Grantee) or of Grantee, which rights are hereby expressly
reserved


 









 






 by each, to terminate Grantee’s Continuous Service at any time for any reason, with or
without Cause.



Definitions. All capitalized terms in this Notice shall have the meaning assigned to them
in this Notice, the attached Stock Option Agreement or the Plan.





2









 








     By their signatures below, the Company and the Grantee agree that the Option is governed by
this Notice and by the provisions of the Plan and the Stock Option Agreement, both of which are
attached and made a part of this document. The Grantee acknowledges receipt of the Plan and the
Stock Option Agreement, represents that the Grantee has read and is familiar with their provisions,
and hereby accepts the Option subject to all of their terms and conditions.



	 	 	 	 	 
	 

	 	DISCOVERY MINING, INC.	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 

	 	GRANTEE	 	 
	 
	 	 	 	 
	 

	 	 

	 	 






[SIGNATURE PAGE TO NOTICE OF STOCK OPTION GRANT]





 









 








STOCK OPTION AGREEMENT




Recitals



A. Grantee is to render valuable services to the Company (or any Related Entity), and this
Agreement is executed pursuant to, and is intended to carry out the purposes of, the Plan in
connection with the Company’s grant of an option to Grantee.



B. All capitalized terms in this Agreement shall have the meaning assigned to them in this
Agreement, the attached Notice of Grant of Stock Option (the “Notice”), or the Plan.



NOW, THEREFORE, it is hereby agreed as follows:




     1. Grant of Option. The Company hereby grants to Grantee, as of the Grant Date, an
option to purchase up to the number of Shares specified in the Notice. The Shares subject to the
Option shall be purchasable from time to time during the Option term specified in Section 2 below
at the Exercise Price specified in the Notice.



     2. Option Term. This Option shall have a maximum term of nine (9) years measured from
the Grant Date and shall accordingly expire at the close of business on the Expiration Date, unless
sooner exercised or expired as to all of the Shares in accordance with Section 4 below or unless
sooner terminated in accordance with Section 5 or 6 herein.



     3. Limited Transferability. This Option may, in connection with the Grantee’s estate
plan and only to the extent permitted by applicable laws, regulations and rules, be assigned in
whole or in part during Grantee’s lifetime to one or more members of the Grantee’s Immediate
Family. The assigned portion shall be exercisable only by the person or persons who acquire a
proprietary interest in the Option pursuant to such assignment. The terms applicable to the
assigned portion shall be the same as those in effect for this Option immediately prior to such
assignment and shall be set forth in such documents issued to the assignee as the Company may deem
appropriate. Should the Grantee die while holding this Option, then this Option shall be
transferred in accordance with Grantee’s will or the laws of descent and distribution.



     4. Dates of Exercise. This Option shall vest and become exercisable for the Shares
subject thereto in one or more installments as specified in the Notice. As the Option becomes
exercisable for such installments, those installments shall accumulate and the Option shall remain
exercisable for the accumulated installments until the earlier of (i) the Expiration Date, (ii)
March 15th of the calendar year following the calendar year in which such installment
first becomes exercisable, and (iii) termination of the Option term under Section 5 or 6 herein.



     5. Cessation of Continuous Service. The Option term specified in Section 2 above shall
terminate (and this Option shall cease to be outstanding) prior to the Expiration Date should any
of the following provisions become applicable:



          (i) Should Grantee cease to remain in Continuous Service for any reason (other than death,
Disability or Cause) while this Option is outstanding, then Grantee’s right to exercise this Option
shall lapse, and this Option shall cease to be outstanding, upon the earlier of (A) the date that
is three (3) months following the date of such cessation of Continuous Service, (B) March
15th of the calendar year following the calendar year in which the right to exercise for
a given Share first became exercisable or (C) the Expiration Date.



 









 





          (ii) If Grantee dies while this Option is outstanding, then the personal representative of
Grantee’s estate or the person or persons to whom the Option is transferred pursuant to Grantee’s
will or in accordance with the laws of descent and distribution shall have the right to exercise
this Option. Such right shall lapse, and this Option shall cease to be outstanding, upon the
earlier of (A) March 15th of the calendar year following the calendar year in which the
right to exercise for a given Share becomes exercisable following Grantee’s death or (B) the
Expiration Date.



          (iii) Should Grantee cease Continuous Service by reason of Disability while this Option is
outstanding, then Grantee’s right to exercise this Option shall lapse, and this Option shall cease
to be outstanding, upon the earlier of (A) March 15th of the calendar year following the
calendar year in which the right to exercise for a given Share becomes exercisable following
Grantee’s cessation of Continuous Service by reason of Disability or (B) the Expiration Date.



          (iv) Grantee’s date of cessation of Continuous Service shall mean the date upon which Grantee
ceases active performance of services for the Company following the provision of such notification
of termination or resignation from Continuous Service and shall be determined solely by this
Agreement and without reference to any other agreement, written or oral, including Grantee’s
contract of employment, and shall not otherwise include any period of notice of termination of
employment, whether expressed or implied.



          (v) During the limited period of post-Continuous Service exercisability, this Option may not
be exercised in the aggregate for more than the number of vested Shares for which the Option is
exercisable at the time of Grantee’s cessation of Continuous Service. Upon the expiration of such
limited exercise period or (if earlier) upon the Expiration Date, this Option shall terminate and
cease to be outstanding for any vested Shares for which the Option has not been exercised. However,
this Option shall, immediately upon Grantee’s cessation of Continuous Service for any reason,
terminate and cease to be outstanding with respect to any Shares in which Grantee is not otherwise
at that time vested or for which this Option is not otherwise at that time exercisable.



          (vi) Should Grantee’s Continuous Service be terminated for Cause or should Grantee otherwise
engage in activities constituting Cause while this Option is outstanding, then this Option shall
terminate immediately and cease to remain outstanding. In the event Grantee’s Continuous Service
with the Company is suspended pending an investigation of whether Grantee’s Continuous Service will
be terminated for Cause, all Grantee’s rights under the Option, including the right to exercise the
Option, shall be suspended during the investigation period.



     6. Accelerated Termination of Option. This Option shall automatically terminate
immediately prior to the effective date of a Corporate Transaction; however no such termination of
this Option shall occur if and to the extent this Option is, in connection with a Corporate
Transaction, either assumed by the successor corporation (or parent thereof) or replaced with a
comparable option to purchase shares of the capital stock of the successor corporation (or parent
thereof). The determination of option comparability shall be made by the Administrator, and such
determination shall be final, binding and conclusive.



     7. Adjustment in Shares. In the event of any change in capitalization of the Company,
the Shares subject to the Option shall be adjusted in accordance with Section 10 of the Plan.



     8. Shareholder Rights. The holder of this Option shall not have any shareholder



 









 







rights
with respect to the Shares until such person shall have exercised the Option, paid the Exercise
Price and become a holder of record of the purchased Shares.



     9. Manner of Exercising Option.



          (a) In order to exercise this Option with respect to all or any part of the Shares for which
this Option is at the time exercisable, Grantee (or any other person or persons exercising the
Option) must take the following actions:



               (i) Pay the aggregate Exercise Price for the purchased Shares in one or more of the following
forms:



                    (A) cash or check made payable to a Company-designated brokerage firm or the Company; or



                    (B) as permitted by applicable law, through a special sale and remittance procedure pursuant
to which Grantee (or any other person or persons exercising the Option) shall concurrently provide
irrevocable written instructions (I) to a Company-designated brokerage firm (or in the case of an
executive officer or Board member of the Company, an Grantee-designated brokerage firm) to effect
the immediate sale of the purchased Shares and remit to the Company, out of the sale proceeds
available on the settlement date, sufficient funds to cover the aggregate Exercise Price payable
for the purchased Shares plus, if applicable, the amount necessary to satisfy the Company’s
withholding obligations at the minimum statutory withholding rates and (II) to the Company to
deliver the certificates for the purchased Shares directly to such brokerage firm in order to
complete the sale transaction.



               (ii) Furnish to the Company appropriate documentation that the person or persons exercising
the Option (if other than Grantee) have the right to exercise this Option.



               (iii) Make appropriate arrangements with the Company (or Parent or Subsidiary employing or
retaining Grantee) for the satisfaction of all tax withholding requirements applicable to the
Option exercise.



          (b) As soon as practical after the exercise date, the Company shall issue to or on behalf of
Grantee (or any other person or persons exercising this Option) the purchased Shares (as evidenced
by an appropriate entry on the books of the Company or a duly authorized transfer agent of the
Company), with the appropriate legends affixed thereto.



          (c) In no event may this Option be exercised for any fractional Shares.



          (d) Notwithstanding any other provisions of the Plan, this Agreement or any other agreement to
the contrary, if at the time this Option is exercised, Grantee is indebted to the Company (or any
Parent or Subsidiary) for any reason, the following actions shall be taken, as deemed appropriate
by the Administrator:



               (i) any Shares to be issued upon such exercise shall automatically be pledged against
Grantee’s outstanding indebtedness; and



               (ii) if this Option is exercised in accordance with Section 9(a)(i)(B) above, the after tax
proceeds of the sale of Grantee’s Shares shall automatically be applied to the



 









 







outstanding balance
of Grantee’s indebtedness.



     10. Compliance with Laws and Regulations.



          (a) The exercise of this Option and the issuance of the Shares upon such exercise shall be
subject to compliance by the Company and Grantee with all applicable laws, regulations and rules
relating thereto, including all applicable regulations of any stock exchange (or The NASDAQ Global
Market, if applicable) on which the Shares may be listed for trading at the time of such exercise
and issuance.



          (b) The inability of the Company to obtain approval from any regulatory body having authority
deemed by the Company to be necessary to the lawful issuance and sale of any Shares pursuant to
this Option shall relieve the Company of any liability with respect to the non-issuance or sale of
the Shares as to which such approval shall not have been obtained. The Company, however, shall use
its best efforts to obtain all such approvals.



     11. Successors and Assigns. Except to the extent otherwise provided in Sections 3 and
6 herein, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the
Company and its successors and assigns and Grantee, Grantee’s assigns and the legal
representatives, heirs and legatees of Grantee’s estate.



     12. Notices. Any notice required to be given or delivered to the Company under the
terms of this Agreement shall be in writing and addressed to the Company at its principal corporate
offices. Any notice required to be given or delivered to Grantee shall be in writing and addressed
to Grantee at the address maintained for Grantee in the Company’s records. All notices shall be
deemed effective upon personal delivery or upon deposit in the U.S. mail, postage prepaid and
properly addressed to the party to be notified.



     13. Construction. The Notice, this Agreement, and the Option evidenced hereby (a) are
made and granted pursuant to the Plan and are in all respects limited by and subject to the terms
of the Plan, and (b) constitute the entire agreement between Grantee and the Company on the subject
matter hereof and supercede all proposals, written or oral, an all other communications between the
parties related to the subject matter. All decisions of the Administrator with respect to any
question or issue arising under the Notice, this Agreement or the Plan shall be conclusive and
binding on all persons having an interest in this Option.



     14. Governing Law. The interpretation, performance and enforcement of this Agreement
shall be governed by the laws of the State of California without resort to the conflict of laws
principles thereof.



     15. Excess Shares. If the Shares covered by this Agreement exceed, as of the Grant
Date, the number of Shares which may without shareholder approval be issued under the Plan, then
this Option shall be void with respect to those excess shares, unless shareholder approval of an
amendment sufficiently increasing the number of Shares issuable under the Plan is obtained in
accordance with the provisions of the Plan and all applicable laws, regulations and rules.



     16. Leave of Absence. Unless otherwise determined by the Administrator, the following
provisions shall apply upon the Grantee’s commencement of an authorized leave of absence:



     (a) The Exercise Schedule in effect under the Notice shall be frozen as of the first



 









 







day of
the authorized leave, and this Option shall not become exercisable for any additional installments
of the Shares during the period Grantee remains on such leave.



     (b) In no event shall this Option become exercisable for any additional Shares or otherwise
remain outstanding if Grantee does not resume Continuous Service prior to the Expiration Date of
the Option term.



     17. Further Instruments. The parties agree to execute such further instruments and to
take such further action as may be reasonably necessary to carry out the purposes and intent of
this Agreement.



     18. Authorization to Release Necessary Personal Information.



          (a) Grantee hereby authorizes and directs Grantee’s employer to collect, use and transfer in
electronic or other form, any personal information (the “Data”) regarding Grantee’s employment, the
nature and amount of Grantee’s compensation and the fact and conditions of Grantee’s participation
in the Plan (including, but not limited to, Grantee’s name, home address, telephone number, date of
birth, social security number (or any other social or national identification number), salary,
nationality, job title, number of Shares held and the details of all options or any other
entitlement to Shares awarded, cancelled, exercised, vested, unvested or outstanding) for the
purpose of implementing, administering and managing Grantee’s participation in the Plan. Grantee
understands that the Data may be transferred to the Company or any Related Entity, or to any third
parties assisting in the implementation, administration and management of the Plan, including any
requisite transfer to a broker or other third party assisting with the exercise of Options under
the Plan or with whom Shares acquired upon exercise of this Option or cash from the sale of such
shares may be deposited. Grantee acknowledges that recipients of the Data may be located in
different countries, and those countries may have data privacy laws and protections different from
those in the country of Grantee’s residence. Furthermore, Grantee acknowledges and understands that
the transfer of the Data to the Company or any Related Entity, or to any third parties is necessary
for Grantee’s participation in the Plan.



          (b) Grantee may at any time withdraw the consents herein, by contacting Grantee’s local human
resources representative in writing. Grantee further acknowledges that withdrawal of consent may
affect Grantee’s ability to exercise or realize benefits from the Option, and Grantee’s ability to
participate in the Plan.



     19. No Entitlement or Claims for Compensation.



          (a) Grantee’s rights, if any, in respect of or in connection with this Option or any other
Award is derived solely from the discretionary decision of the Company to permit Grantee to
participate in the Plan and to benefit from a discretionary Award. By accepting this Option,
Grantee expressly acknowledges that there is no obligation on the part of the Company to continue
the Plan and/or grant any additional Awards to Grantee. This Option is not intended to be
compensation of a continuing or recurring nature, or part of Grantee’s normal or expected
compensation, and in no way represents any portion of a Grantee’s salary, compensation, or other
remuneration for purposes of pension benefits, severance, redundancy, resignation or any other
purpose.



          (b) Neither the Plan nor this Option or any other Award granted under the Plan shall be deemed
to give Grantee a right to remain an Employee, Consultant or Director of the Company, Related
Entity or an affiliate. The Company and any Related Entity and affiliates



 









 







reserve the right to
terminate the Continuous Service of Grantee at any time, with or without Cause, and for any reason,
subject to applicable laws, the Company’s Certificate of Incorporation and Bylaws and a written
employment agreement (if any), and Grantee shall be deemed irrevocably to have waived any claim to
damages or specific performance for breach of contract or dismissal, compensation for loss of
office, tort or otherwise with respect to the Plan, this Option or any outstanding Award that is
forfeited and/or is terminated by its terms or to any future Award.



          (c) Grantee agrees that the Company may require Options granted hereunder be exercised with,
and the Shares held by, a broker designated by the Company. In addition, Grantee agrees that his
or her rights hereunder shall be subject to set-off by the Company for any valid debts the Grantee
owes to the Company.



 









 










Interwoven, Inc.

160 East Tasman Drive

San Jose, CA 95134




Discovery Mining, Inc. Option Assumption Agreement




August      , 2008



Dear «First_Name» «Last_Name»:



As you know, on August 1, 2008 (the “Effective Time”), Interwoven, Inc., a Delaware corporation
(“Interwoven”), completed its acquisition of Discovery Mining, Inc., a Delaware corporation
(“Discovery Mining”) pursuant to an Agreement and Plan of Merger, dated as of July 23, 2008 (the
“Merger Agreement”), pursuant to which Discovery Mining merged with and into Presidio Acquisition
Corp., a wholly-owned subsidiary of Interwoven (the “Acquisition”) with Discovery Mining surviving
the merger as a wholly owned subsidiary of Interwoven (the “Merger”). The purpose of this notice
is to inform you of how your options to purchase Common Stock of Discovery Mining (the “Discovery
Mining Options”), granted under the Discovery Mining 2003 Stock Incentive Plan (the “Option Plan”),
will be treated in connection with the Acquisition.



Acceleration



Immediately prior to the completion of the Acquisition, each of your outstanding and unvested
Discovery Mining Options other than any (1) New Company Option that you were granted in
connection with the Acquisition (as defined in your Interwoven offer letter or Employment
Agreement) or (2) any Discovery Mining Options subject to any Benefits Waiver or Equity Agreement
(both as defined in the Merger Agreement), shall be fully accelerated.



Cash-Out of Vested Options



Upon the completion of the Acquisition, your Discovery Mining Options that were outstanding and
vested (including those Discovery Mining Options that fully accelerate as described above, which
for the sake of clarity, does not include your New Company Option, or any Discovery Mining
Options subject to any Benefits Waiver or Equity Agreement) were automatically converted into the
right to receive an amount of cash (without interest) equal to the product of (1) $6.67071, the
Common Cash Amount Per Share (as defined in the Merger Agreement) minus the exercise price
per share of Common Stock subject to such Discovery Mining Options multiplied by (2) the
number of shares of Common Stock subject to such Discovery Mining Options (subject to applicable
tax withholdings and deductions for the Escrow Cash and Expense Funds (both as defined in the
Merger Agreement) and rounded to the nearest cent). This cash amount is referred to as the
“Cash-Out”. You will receive a “Letter of Transmittal” instructing you how to receive the
Cash-Out.




 









 







Assumption & Conversion of Unvested Options



Upon the completion of the Acquisition, your Discovery Mining Options that were outstanding and
unvested (including your New Company Option and any Discovery Mining Options subject to any
Benefits Waiver or Equity Agreement) were assumed by Interwoven and converted into options to
purchase shares of Interwoven’s Common Stock pursuant to a conversion ratio intended to preserve
the economic value of your Discovery Mining Options that existed immediately prior to the
Acquisition (the “Assumed Options”). Each Assumed Option will continue to be subject to the same
terms and conditions of the Option Plan and any applicable option agreements to which they were
subject prior to the completion of the Acquisition (including the existing term and vesting
schedule) except as set forth in this notice or an applicable Equity Agreement.



Your outstanding and unvested Discovery Mining Options were converted into Assumed Options as
follows: (i) each Assumed Option will be exercisable (when vested) for that number of whole shares
of Interwoven Common Stock determined by multiplying the number of shares of Discovery
Mining Common Stock subject to such Discovery Mining Options immediately prior to the Effective
Time of the Acquisition by the Option Exchange Ratio (as defined below) (rounded down to the
nearest whole number of Interwoven Common Stock, with no cash being payable for any fractional
share eliminated by such rounding) and (ii) the exercise price per share of each such Discovery
Mining Option will equal the exercise price of each such Discovery Mining Option immediately prior
to the Effective Time of the Acquisition divided by the Option Exchange Ratio (rounded up
to the nearest whole cent).



The “Option Exchange Ratio” is 0.515431, which is equal to the quotient obtained by
dividing (a) $6.67071, the Common Cash Amount Per Share by (b) $12.942, the which is the
average closing price of Interwoven Common Stock on the NASDAQ Stock Market for the ten (10)
consecutive trading days ending on (and inclusive of) the signing of the Acquisition.



The table below summarizes your assumed Discovery Mining Options immediately before and after the
Acquisition. It reflects the conversion of your Discovery Mining Options using the Option Exchange
Ratio. By signing below, you hereby agree that the Discovery Mining Options listed below represent
all of your outstanding and unvested Discovery Mining Options as of the date hereof and that you
have no further right or claim to any Discovery Mining Options (except for your Discovery Mining
Options that are being Cashed-Out as set forth above).




	 	 	 
	DISCOVERY MINING OPTION
	 	ASSUMED OPTION






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	No. of	 	 
	 	 	 	 	Exercise Price per	 	shares of	 	 
	 	 	No. of shares of	 	share of Discovery	 	Interwoven	 	Exercise Price
	Grant	 	Discovery Mining	 	Mining Common	 	Common	 	per share of Interwoven
	Date	 	Common Stock	 	Stock	 	Stock	 	Common Stock
	 
	 	 	 	 	 	 	 	 





Exercise of Assumed Options



In accordance with Interwoven’s policies, the only permissible methods to exercise your Assumed
Options are cash, check, wire transfer, or through a cashless exercise program with eTrade,
Interwoven’s designated broker. None of the Assumed Options may be “early exercised” (i.e., an
Assumed Option may be exercised for shares of Interwoven Common Stock only to the extent the
Assumed Option is vested at


 









 






the time of exercise pursuant to the applicable vesting schedule). Upon termination of your
employment you will have the applicable limited post-termination exercise period specified in your
option agreements for your Assumed Option.




Unless the context otherwise requires, on and following the assumption of your Discovery Mining
Options as described above, any references in the Option Plan and the option agreements to: (i) the
“Company” or the “Corporation” means Interwoven, (ii) “Stock”, “Common Stock” or “Shares” means
shares of Interwoven Common Stock, (iii) the “Board of Directors”, the “Board” or the “Management
Committee” means the Board of Directors of Interwoven and (iv) the “Committee” means the
Compensation Committee of the Board of Directors of Interwoven. All references in the option
agreements and the Option Plan relating to your status as an employee of Discovery Mining will now
refer to your status as an employee of Interwoven or any present or future Interwoven subsidiary.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]





 









 







Please sign and date this Agreement, as soon as possible, and return it to Mariela Casis
or fax to her at the following number: 408-433-9353.



If you have any questions regarding this notice or your Discovery Mining Options, please contact
Mariela Casis at 408-953-7001.



Until your fully executed Acknowledgment (below) is received by Interwoven’s Stock
Administration Department your Assumed Options will not be exercisable.




	 	 	 
	 

	 	Very truly yours,
	 
	 	 
	 

	 	INTERWOVEN, INC.
	 
	 	 
	 

	 	 





ACKNOWLEDGMENT



The undersigned acknowledges receipt of the foregoing Option Assumption Agreement and understands
and agrees that all rights and liabilities with respect to the Assumed Options listed on the table
above are hereby assumed by Interwoven and are as set forth in the option agreements for such
Assumed Options, the Plan and this Option Assumption Agreement and agrees to the terms as set forth
in such Option Assumption Agreement.




	 	 	 	 	 
	DATED:                     , 2008

	 	Name:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Address: